[Federal Register Volume 75, Number 106 (Thursday, June 3, 2010)]
[Rules and Regulations]
[Pages 31610-31661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12699]
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Part III
Department of Agriculture
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Commodity Credit Corporation
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7 CFR Part 1470
Conservation Stewardship Program; Final Rule
Federal Register / Vol. 75 , No. 106 / Thursday, June 3, 2010 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1470
RIN 0578-AA43
Conservation Stewardship Program
AGENCY: Commodity Credit Corporation, Natural Resources Conservation
Service, United States Department of Agriculture.
ACTION: Final rule.
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SUMMARY: Section 2301 of the Food, Conservation, and Energy Act of 2008
(2008 Act) amended the Food Security Act of 1985 to establish the
Conservation Stewardship Program (CSP). On July 29, 2009, the Natural
Resources Conservation Service (NRCS) published an interim final rule
for CSP with a 60-day public comment period. On September 21, 2009, the
public comment period was extended 30 days. NRCS is publishing a final
rule that addresses the comments received on the interim final rule and
makes other minor adjustments to improve clarity of the rule.
DATES: Effective Date: The rule is effective June 3, 2010.
FOR FURTHER INFORMATION CONTACT: Dwayne Howard, Branch Chief, Financial
Assistance Programs Division, Department of Agriculture, Natural
Resources Conservation Service, 1400 Independence Avenue, SW., Room
5237 South Building, Washington, DC 20250; Telephone: (202) 720-1845;
Fax: (202) 720-4265; or e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866 (FR Doc. 93-24523, September 30,
1993), this final rule is an economically significant regulatory action
since it results in an annual effect on the economy of $100 million or
more. The administrative record is available for public inspection at
the Department of Agriculture, 1400 Independence Avenue, SW., Room 5242
South Building, Washington, DC 20250.
Pursuant to Executive Order 12866, NRCS conducted an economic
analysis of the potential impacts associated with this program. A
summary of the economic analysis can be found at the end of the
Regulatory Certifications section of this preamble and a copy of the
analysis is available upon request from Dwayne Howard, Branch Chief,
Financial Assistance Programs Division, Department of Agriculture,
Natural Resources Conservation Service, Room 5237 South Building,
Washington, DC 20250 or electronically at http://www.nrcs.usda.gov/programs/csp/ under the CSP Rules and Notices with Supporting Documents
title.
Regulatory Flexibility Act
NRCS has determined that the Regulatory Flexibility Act is not
applicable to this final rule because NRCS is not required by 5 U.S.C.
553, or any other provision of law, to publish a notice of proposed
rulemaking with respect to the subject matter of this rule.
Environmental Analysis
Availability of the Environmental Assessment (EA) and Finding of No
Significant Impact (FONSI). A programmatic environmental assessment was
prepared in association with the CSP interim final rule. The analysis
determined that there was not a significant impact to the human
environment and as a result an Environmental Impact Statement was not
required to be prepared (40 CFR part 1508.13). The EA and FONSI were
available for review and comment for 30 days from the date the interim
final rule was published in the Federal Register.
For this final rulemaking, the agency has determined that there are
no new circumstances or significant new information that has a bearing
on environmental effects which warrant supplementing the previous EA
and FONSI. The proposed changes identified in this final rule are
considered minor changes that should be implemented for the program.
The majority of these changes are administrative or technical or
corrections to the regulation.
Copies of the EA and FONSI may be obtained from Matt Harrington,
National Environmental Coordinator, Ecological Sciences Division,
Department of Agriculture, Natural Resources Conservation Service, 1400
Independence Avenue, SW., Room 6151 South Building, Washington, DC
20250. The CSP EA and FONSI are also available at the following
Internet address: http://www.nrcs.usda.gov/programs/Env_Assess.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis (CRIA)
that the interim final rule discloses no disproportionately adverse
impacts for minorities, women, or persons with disabilities. The final
CRIA provides responses to the interim final rule's CRIA comments. The
Department of Agriculture (USDA), Office of Assistant Secretary for
Civil Rights (OASCR), Office of Compliance, Policy, and Training
(formally the Office of Adjudication and Compliance) worked with NRCS
in the initial preparation of the proposed interim final rule and CRIA.
Based on these preliminary meetings and their review, it was determined
there was no adverse impact. The OASCR concurred with the CRIA for the
proposed final rule.
The data presented indicates producers who are members of the
protected groups have participated in NRCS conservation programs at
parity with other producers. Extrapolating from historical
participation data, it is reasonable to conclude that NRCS programs,
including CSP, will continue to be administered in a non-discriminatory
manner. Outreach and communication strategies are in place to ensure
all producers will be provided the same information to allow them to
make informed compliance decisions regarding the use of their lands
that will affect their participation in USDA programs. CSP applies to
all persons equally regardless of their race, color, national origin,
gender, sex, or disability status. Therefore, the CSP rule portends no
adverse civil rights implications for women, minorities, and persons
with disabilities.
Paperwork Reduction Act
Section 2904 of the 2008 Act provides that the promulgation of
regulations and the administration of Title II of the 2008 Act, which
contain the amendments that authorize CSP, will be made without regard
to chapter 35 of Title 44 of the U.S.C. also known as the Paperwork
Reduction Act. Therefore, NRCS is not reporting recordkeeping or
estimated paperwork burden associated with this interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act, which requires government agencies, in general, to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. To better
accommodate public access, NRCS has developed an online application and
information system for public use.
Executive Order 12988
This final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The provisions of this final rule
are not retroactive. The provisions of this final rule preempt State
and local laws to the extent that such laws are inconsistent with this
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final rule. Before an action may be brought in a Federal court of
competent jurisdiction, the administrative appeal rights afforded
persons at 7 CFR parts 614, 780, and 11 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Section 304 of the Department of Agriculture Reorganization Act of
1994, Public Law 103-354, requires that a risk assessment be prepared
in conjunction with any notice of proposed rulemaking for a major
regulation. Pursuant to section 2904 of the 2008 Act, NRCS is
promulgating this final rule, and therefore, a risk assessment is not
required. However, risks associated with the final rule have been
assessed pursuant to the analysis prepared in compliance with Executive
Order 12866.
Unfunded Mandates Reform Act of 1995
NRCS assessed the effects of this rulemaking action on State,
local, and tribal governments, and the public. This action does not
compel the expenditure of $100 million or more by any State, local, or
tribal governments, or anyone in the private sector; therefore, a
statement under section 202 of the Unfunded Mandates Reform Act of 1995
is not required.
Executive Order 13132
This final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. USDA has determined
that this final rule conforms with the Federalism principles set forth
in the Executive Order, would not impose any compliance costs on the
States, and would not have substantial direct effects on the States, on
the relationship between the Federal Government and the States, or on
the distribution of power and responsibilities on the various levels of
government. Therefore, USDA concludes that this final rule does not
have Federalism implications.
Executive Order 13175
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. NRCS has assessed the impact of this
final rule on Indian tribal governments and concluded that this final
rule will not negatively affect Indian tribal governments or their
communities. The rule neither imposes substantial direct compliance
costs on tribal governments nor preempts tribal law. However, NRCS
plans to undertake a series of at least six regional tribal
consultation sessions before December 30, 2010, on the impact of NRCS
conservation programs and services on tribal governments and their
members to establish a baseline of consultation for future actions.
Reports from these sessions will be made part of the USDA annual
reporting on Tribal Consultation and Collaboration. NRCS will respond
in a timely and meaningful manner to all tribal governments' requests
for consultation.
Small Business Regulatory Enforcement Fairness Act of 1996
Section 2904(c) of the 2008 Act requires that the Secretary use the
authority in section 808(2) of title 5 U.S.C., which allows an agency
to forgo the Small Business Regulatory Enforcement Fairness Act of 1996
usual congressional review delay of the effective date of a regulation
if the agency finds that there is a good cause to do so. NRCS hereby
determines that it has good cause to do so in order to meet the
congressional intent to have the conservation programs authorized or
amended by Title II in effect as soon as possible. Accordingly, this
rule is effective upon filing for public inspection by the Office of
the Federal Register.
Section 2708 of the 2008 Act
Section 2708, ``Compliance and Performance,'' of the 2008 Act added
a paragraph to section 1244(g) of the Food Security Act of 1985 Act
entitled, ``Administrative Requirements for Conservation Programs,''
which states the following:
``(g) Compliance and performance.--For each conservation program
under Subtitle D, the Secretary will develop procedures--
(1) To monitor compliance with program requirements;
(2) To measure program performance;
(3) To demonstrate whether long-term conservation benefits of the
program are being achieved;
(4) To track participation by crop and livestock type; and
(5) To coordinate activities described in this subsection with the
national conservation program authorized under section 5 of the Soil
and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).''
This new provision presents in one place the accountability
requirements placed on the agency as it implements conservation
programs and reports on program results. The requirements apply to all
programs under Subtitle D, including the Wetlands Reserve Program,
Conservation Security Program, Conservation Stewardship Program, Farm
and Ranch Lands Protection Program, Grassland Reserve Program (GRP),
Environmental Quality Incentives Program (EQIP) (including the
Agricultural Water Enhancement Program), Wildlife Habitat Incentive
Program (WHIP), and Chesapeake Bay Watershed initiative. These
requirements are not directly incorporated into these regulations which
set out requirements for program participants. However, certain
provisions within these regulations relate to elements of section
1244(g) of the Food Security Act of 1985 Act and the agency's
accountability responsibilities regarding program performance. NRCS is
taking this opportunity to describe existing procedures that relate to
meeting the requirements of section 1244(g) of the Food Security Act of
1985, and agency expectations for improving its ability to report on
each program's performance and achievement of long-term conservation
benefits. Also included is reference to the sections of these
regulations that apply to program participants and that relate to the
agency accountability requirements as outlined in section 1244(g) of
the Food Security Act of 1985.
Monitor compliance with program requirements. NRCS has established
application procedures to ensure that participants meet eligibility
requirements and follow-up procedures to ensure that participants are
complying with the terms and conditions of their contractual
arrangement with the government and that the installed conservation
measures are operating as intended. These and related program
compliance evaluation policies are set forth in agency guidance
(Conservation Programs Manual--440--Part 512 and Conservation Programs
Manual --440--Part 508) (http://directives.sc.egov.usda.gov/). The
program requirements applicable to participants that relate to
compliance are set forth in these regulations in Sec. 1470.6
``Eligibility requirements,'' Sec. 1470.21 ``Contract requirements,''
Sec. 1470.22 ``Conservation stewardship plan,'' and Sec. 1470.23
``Conservation activity operation and maintenance.'' These sections
make clear the general program eligibility requirements, participant
obligations for implementing a conservation stewardship plan, contract
obligations, and requirements for operating and maintaining CSP-funded
conservation activities.
Measure program performance. Pursuant to the requirements of the
Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec.
1116) and guidance provided by Office of
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Management and Budget Circular A-11, NRCS has established performance
measures for its conservation programs. Program-funded conservation
activity is captured through automated field-level business tools, and
the information is available to the public at http://ias.sc.egov.usda.gov/PRSHOME/. Program performance is also reported
annually to Congress and the public through the annual performance
budget, annual accomplishments report, and the USDA Performance
Accountability Report. Related performance measurement and reporting
policies are set forth in agency guidance (GM--340--401 and GM--340--
403) (http://directives.sc.egov.usda.gov/).
The conservation actions undertaken by participants are the basis
for measuring program performance; specific actions are tracked and
reported annually, while the effects of those actions relate to whether
the long-term benefits of the program are being achieved. The program
requirements applicable to participants that relate to undertaking
conservation actions are set forth in these regulations in Sec.
1470.21 ``Contract requirements,'' Sec. 1470.22 ``Conservation
stewardship plan,'' and Sec. 1470.23 ``Conservation activity operation
and maintenance.'' These sections make clear participant obligations
for installing, adopting, improving, maintaining, and managing
conservation stewardship activities which in aggregate result in the
program performance that is reflected in agency performance reports.
Demonstrating the long-term natural resource benefits achieved
through conservation programs is subject to the availability of needed
data, the capacity and capability of modeling approaches, and the
external influences that affect actual natural resource condition.
While NRCS captures many measures of ``output'' data, such as acres of
conservation practices, it is still in the process of developing
methods to quantify the contribution of those outputs to environmental
outcomes.
NRCS currently uses a mix of approaches to evaluate whether long-
term conservation benefits are being achieved through its programs.
Since 1982, NRCS has reported on certain natural resource status and
trends through the National Resources Inventory (NRI), which provides
statistically reliable, nationally consistent land cover/use and
related natural resource data. However, lacking has been a connection
between these data and specific conservation programs.\1\ In the
future, the interagency Conservation Effects Assessment Project (CEAP),
which has been underway since 2003, will provide nationally consistent
estimates of environmental effects resulting from conservation
practices and systems applied. CEAP results will be used in conjunction
with performance data gathered through agency field-level business
tools to help produce estimates of environmental effects accomplished
through agency programs, such as CSP. In 2006 a Blue Ribbon panel
evaluation of CEAP \2\ strongly endorsed the project's purpose but
concluded ``CEAP must change direction'' to achieve its purposes. In
response, CEAP has focused on priorities identified by the panel and
clarified that its purpose is to quantify the effects of conservation
practices applied on the landscape. Information regarding CEAP,
including reviews and current status, is available at http://www.nrcs.usda.gov/technical/NRI/ceap/. Since 2004 and the initial
establishment of long-term performance measures by program, NRCS has
been estimating and reporting progress toward long-term program goals.
The NRI and assessment and the performance measurement and reporting
policies are set forth in agency guidance (GM--290--400, GM--340--401,
and GM--340--403) (http://directives.sc.egov.usda.gov/).
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\1\ The exception to this is the CRP; since 1987 the NRI has
reported acreage enrolled in CRP.
\2\ Soil and Water Conservation Society. 2006. Final Report from
the Blue Ribbon Panel Conducting an External Review of the US
Department of Agriculture Conservation Effects Assessment Project.
Ankeny, IA: Soil and Water Conservation Society. This review is
available at http://www.nrcs.usda.gov/technical/NRI/ceap/.
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Demonstrating the long-term conservation benefits of conservation
programs is an agency responsibility. Through CEAP, NRCS is in the
process of evaluating how these long-term benefits can be achieved
through the conservation practices and systems applied by participants
under each of its programs. The CSP program requirements applicable to
participants that relate to producing long-term conservation benefits
are located in Sec. 1470.21 ``Contract requirements,'' Sec. 1470.22
``Conservation stewardship plan,'' and Sec. 1470.23 ``Conservation
activity operation and maintenance.'' These requirements and related
program management procedures supporting program implementation are set
forth in agency guidance (Conservation Programs Manual 440--Part 512
and Conservation Programs Manual --440--Part 508).
Coordinate these actions with the national conservation program
authorized under the Soil and Water Resources Conservation Act (RCA).
The 2008 Act reauthorized and expanded on a number of elements of the
RCA related to evaluating program performance and conservation
benefits. Specifically, the 2008 Act added a provision stating:
``Appraisal and inventory of resources, assessment and inventory
of conservation needs, evaluation of the effects of conservation
practices, and analyses of alternative approaches to existing
conservation programs are basic to effective soil, water, and
related natural resources conservation.''
The program, performance, and natural resource and effects data
described previously will serve as a foundation for the next RCA, which
will also identify and fill, to the extent possible, data and
information gaps. Policy and procedures related to the RCA are set
forth in agency guidance (GM--290--400 and GM--130--402) (http://directives.sc.egov.usda.gov/).
The coordination of the previously described components with the
RCA is an agency responsibility and is not reflected in these
regulations. However, it is likely that results from the RCA process
will result in modifications to the program and performance data
collected, to the systems used to acquire data and information, and
potentially to the program itself. Thus, as the Secretary proceeds to
implement the RCA in accordance with the statute, the approaches and
processes developed will improve existing program performance
measurement and outcome reporting capability and provide the foundation
for improved implementation of the program performance requirements of
section 1244(g) of the Food Security Act of 1985.
Economic Analysis--Executive Summary
Pursuant to Executive Order 12866, Regulatory Planning and Review,
NRCS conducted a cost-effectiveness analysis (CEA) of the CSP as
formulated for the interim final rule.
This CEA describes how CSP financial assistance and technical
assistance are made available to farmers and ranchers who agree to
install and adopt additional conservation activities; and improve,
maintain, and manage conservation activities in place in accordance
with CSP's objectives. The CEA compares the impact of these activities
in generating environmental benefits with program costs. Many of these
improvements can produce beneficial impacts concerning onsite
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resource conditions (such as conserving soil) and significant offsite
environmental benefits (such as cleaner water, improved air quality,
and enhanced wildlife habitat).
The environmental outcomes expected to be generated by enhancement
activities are based on extrapolations of the environmental outcomes
that have been studied and associated with many traditional NRCS
conservation practices. While the outcomes from many traditional
conservation practices have been assessed, the impacts generated from
these enhancements are not as well studied. In conducting economic
analyses where benefits are not well understood or difficult to
measure, but activity costs are available, the traditional benefit-cost
analysis is generally replaced with a CEA, the approach used for both
this assessment and the interim final rule.
In considering alternatives for implementing CSP, NRCS followed the
legislative intent to establish a clear and transparent method to
determine in an open and participatory process, potential participants'
current and future levels of conservation stewardship in order to gauge
their environmental impacts and compare them. Because CSP is voluntary,
the program is not expected to impose any obligation or burden upon
agricultural producers and nonindustrial private forestland (NIPF)
owners who choose not to participate.\3\
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\3\ An impact could be expected in cases where CSP funds
activities that lead to large increases of certain environmental
services and goods where those markets are beginning to get started.
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Congress authorized the enrollment of 12,769,000 acres for each
fiscal year (FY) for the period beginning October 1, 2008, through
September 30, 2017. For FY 2009 through FY 2012, CSP has been
authorized 51,076,000 acres (4 years multiplied by a 12,769,000 acre
program cap per year).
Total program costs for CSP are shown in Table 1. Full
participation is assumed for each of the 4 years CSP is offered, and
the duration of each contract is 5 years. Total costs include only
costs to the government.\4\ Cumulative program costs for four program
ranking periods are estimated to be $2.990 billion in constant 2005
dollars, discounted at 7 percent. At a 3 percent discount rate, program
costs increase to $3.520 billion in constant 2005 dollars.
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\4\ Given the wide set of possible initial resource conditions
and conservation activities likely to be adopted, it is not possible
to ascertain whether (or to what extent) CSP payments offset
expected costs to producers in adopting new activities or past
activities.
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The information in Table 1 highlights the cumulative impacts of
four ranking periods and 5-year contracts. Each sign-up creates a
commitment of $229.842 million for 5 years. Participants in the initial
ranking period receive payments through FY 2014; participants in the
last ranking period receive payments through FY 2017. The largest
outlays of program funds occur in FY 2013 and FY 2014 and then begin to
taper off as contracts from the first and later ranking periods end.
Table 1--Total Program Costs of CSP, FY 2010 to FY 2017
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GDP price Yearly cost in
Yearly cost deflator \2\ constant Discount Present value Discount Present value
\1\ (million (chained, dollars \1\ factors for of costs-3% factors for of costs-7%
$) 2005=100) (million $) 3% (million $) 7% (million $)
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FY10.................................... 229.842 108.5 211.836 0.9709 205.666 0.9346 197.978
FY11.................................... 459.684 110.1 417.515 0.9426 393.548 0.8734 364.674
FY12.................................... 689.526 111.3 619.520 0.9151 566.949 0.8163 505.713
FY13.................................... 919.368 113.1 812.881 0.8885 722.234 0.7629 620.143
FY14.................................... 919.368 115.6 795.301 0.8626 686.034 0.7130 567.039
FY15.................................... 689.526 118.1 583.849 0.8375 488.965 0.6663 389.043
FY16.................................... 459.684 120.7 380.848 0.8131 309.665 0.6227 237.173
FY17.................................... 229.842 123.4 186.258 0.7894 147.034 0.5820 108.404
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Total............................... 4596.840 .............. 4008.008 .............. 3520.093 .............. 2990.166
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\1\ Congress set a maximum acreage limit of 12,769,000 acres and a national average payment rate of $18 per acre.
\2\ USDA Agricultural Projections to 2019. Office of the Chief Economist, World Agricultural Outlook Board, U.S. Department of Agriculture. Prepared by
the Interagency Agricultural Projections Committee. Long-term Projections Report OCE-2010-1, page 15.
Methodology Employed in This Study
Many conservation practices have been extensively studied, but
similar studies pertaining to enhancement activities have not been
conducted. We do not have sufficiently detailed, site-specific
information on existing conservation practices and environmental
outcomes. As a result, estimation of a true baseline of environmental
conditions before and after CSP implementation is not possible.
The methodology employed in this final assessment is the same
methodology applied in the interim final rule except that data from the
initial CSP ranking period are substituted for the representative farm
and environmental data. Although instructive in identifying possible
outcomes of different formulations of CSP, actual enrollment and
contract data are necessary to provide a fuller assessment of CSP
outcomes. A relative comparison of results from the interim final rule
and the final rule was also conducted to identify differences between
predicted and actual outcomes, determine why differences were observed,
and make recommendations, when necessary, to improve CSP's cost
effectiveness. This comparison should not be used beyond its stated
purpose because of different data sets in the two analyses.
CSP and the Conservation Measurement Tool
CSP is a challenging program given its purpose, statutory mandates,
assessments of existing and future conservation activities and their
associated conservation indices, allocation of program funds and acres
across States, and price setting. The following are key elements about
CSP and the conservation measurement tool (CMT).
(a) NRCS allocated acreage for enrollment across States according
to each State's proportion of the Nation's agricultural land base.
(b) NRCS State offices created ranking pools, selected three to
five priority
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resource concerns for every pool, and allocated acres and program
dollars from the national office across the pools.
(c) A national team of NRCS cropland, pastureland, rangeland, and
forest land specialists developed sets of questions by land use
category to identify conservation activities already applied to the
land and the associated level of stewardship by assigning conservation
performance points. The team also identified additional enhancements
for increasing stewardship and assigned conservation performance points
to the additional enhancements. NRCS' Conservation Practice Physical
Effects methodology was used in both of these instances to assign
performance points. Conservation performance points earned by land use
should be viewed as ``environmental indices.''
(d) NRCS developed a CMT to determine eligibility by verifying that
minimum stewardship thresholds were met, estimating conservation
performance from existing and additional activities, and ranking
applications.
(e) NRCS field staff tested the questions and the CMT and made
suggestions that improved CMT's use.
(f) During the initial ranking period, NRCS assisted producers in
completing their resource inventories in the CMT and determining
program eligibility. Eligible applicants identified additional
activities--enhancements and traditional conservation practices--they
were willing to adopt. Each applicant's resource inventory and
additional activities recorded in the CMT earned conservation
performance points per acre by land use.
(g) Every application was ranked within a pool according to the sum
of four equally weighted ranking factors. The maximum ranking score is
1,000; the minimum zero. NRCS selected applications for enrollment
beginning with the highest ranked one and worked down the ranked list
until a pool's funding limit or acreage limit was reached. A fifth
ranking factor came into play as a ``tie breaker'' when two or more
applications were ranked equally. When this situation occurred, the
application that minimized the cost to government was selected.\5\ The
four equally weighted ranking factors are below:
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\5\ ``* * * the Secretary shall rank applications based on * * *
(E) the extent to which the actual and anticipated environmental
benefits from the contract are provided at the least cost relative
to other similarly beneficial contract offers.''
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(1) Ranking factor one measures the existing level of conservation
stewardship for priority resource concerns at the time of enrollment.
(2) Ranking factor two measures the degree that new conservation
activities improve priority resource concern conditions.
(3) Ranking factor three measures the number of priority resource
concerns the applicant agrees to meet during the contract period.
(4) Ranking factor four measures the degree that new conservation
activities improve other resource concern conditions.
(h) CSP payment per land use equals conservation performance points
per acre multiplied by acres multiplied by the land use payment rate.
Total payment per contract equals the sum of the individual land use
payments.\6\
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\6\ For CSP ranking period one, payment rates are $0.0605 for
every cropland conservation performance point, $0.0329 for pasture,
$0.0120 for rangeland, and $0.0164 for NIPF.
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(i) The four policy options used in the interim final rule are also
used in the final rule to identify tradeoffs among the policy options,
especially changes in program acres, conservation performance points,
program costs, and implications with respect to CSP's acreage and
funding constraints.
Detailed descriptions of CSP, CMT, ranking period results, and CEA
analysis can be found in the main body of the report and the
appendices.
Analysis
Results of this analysis show that CSP participation was high
across the nation. As of December 1, 2009, NRCS had classified 15,015
applications as eligible. These applications involved slightly more
than 20.8 million acres, close to double CSP's maximum allowable of
12.179 million acres.\7\
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\7\ To avoid enrolling too many acres or spending more than the
$230 million available for this first ranking period, NRCS initially
allocated 95 percent of the 12.769 million acres. As enrollment
progressed, NRCS allocated the remaining acres.
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Some concerns were raised regarding participation in ranking pools.
No applications were received in 250 of the 693 pools created for CSP.
NRCS found that the majority of these pools were established
specifically for conservation access by beginning farmers or ranchers
and socially disadvantaged farmers or ranchers. All eligible
applications were preapproved in 303 ranking pools because allotted
acreage and funding allocations were not fully committed. The remaining
140 pools accounted for slightly more than 86 percent of eligible
acres, making them highly competitive.
More than 80 percent of the eligible applicants across all land
uses were already meeting and frequently exceeding minimum stewardship
levels on five of the eight resource concerns. Applicants in the
initial CSP ranking period appear to be practicing stewardship at a
fairly high level. As a result, one would expect to see conservation
performance points earned for existing activities to be higher than
performance points earned for additional activities. Summary data from
pre-approved applications in the initial ranking period confirm this
expectation. Existing conservation performance points amounted to 61
percent of total points awarded nationally. This 61-39 percent split
between existing and additional conservation performance points carried
directly over into payments, with 63 percent of projected $142.6
million in financial assistance tied to existing activities.
The policy options described and analyzed using representative farm
and environmental data in the interim final rule indicated that CSP
outcomes could be fine-tuned at the national level by changing the
relative importance of the ranking factors. Based on that analysis,
policy option 1 (four ranking factors were weighted equally) was
selected and used for the initial CSP ranking period. Because three of
the four ranking factors are linked directly to additional activities,
an equal weighting scenario places considerable importance on
additional activities--enhancements and traditional conservation
practices--proposed to be applied over a 5-year period. The expectation
was that the highest ranked applications would include substantially
more additional conservation activities than lower ranked applications.
One of the other policy options might be used to influence the mix
between existing and additional activities after reviewing actual CSP
enrollment.
The five policy options and their reported acreage and program
costs by land use are summarized in Table 2. Policy option 1 represents
the actual CSP ranking period where the ranking factors are equally
weighted. Analyses conducted for policy option 2 (ranking factor 1
receives 5 times the weight--62.5 percent--of the other ranking
factors), policy option 3 (ranking factor 2 receives 5 times the
weight--62.5 percent--of the other ranking factors), policy option 4
(ranking factor 3 receives 5 times the weight--62.5 percent--of the
other ranking factors), and policy option 5 (ranking factor 4 receives
5 times the weight--62.5 percent--of the other ranking factors) did not
appreciably change the percentage splits between existing and
additional performance points and funding. Though acres and costs
shifted among the different land uses, the
[[Page 31615]]
impact on total program costs and costs per acre suggests that policy
options 2 through 5 did not substantially change the current
distributions of funds and acres under policy option 1, which was used
for the initial CSP ranking period.
Table 2--Summary of Program Acreage and Costs by Land Use and Policy Options for CSP Sign-Up One
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acres funded in program \a\ Total program cost \b\
Cost per -------------------------------------------------------------------------------------------------------------
Policy Option acre Range Range
Crop land Pasture land NIPF Total\2\ Crop land Pasture land NIPF Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
(millions of acres)
($ millions)
-------------------------------------------------------------------------------------------------------------
No CSP.......................... N/A 0 0 0 0 0 0 0 0 0 0
........ ......... ......... ......... ......... ......... ......... 14.30 38.90 9.96 180.48
PO-1............................ $14.82 4.833 0.797 5.529 1.019 12.179 117.308 6 9 3 6
........ ......... ......... ......... ......... ......... ......... 14.33 39.16 9.68 176.16
PO-2............................ 14.79 4.570 0.792 5.568 0.985 11.914 112.988 2 2 7 9
........ ......... ......... ......... ......... ......... ......... 14.36 37.08 9.36 171.47
PO-3............................ 14.66 4.752 0.786 5.204 0.951 11.694 110.659 4 3 7 2
........ ......... ......... ......... ......... ......... ......... 14.36 38.41 9.86 177.85
PO-4............................ 14.88 4.726 0.773 5.452 1.004 11.955 115.581 8 5 6 0
........ ......... ......... ......... ......... ......... ......... 13.83 36.13 9.32 179.46
PO-5............................ 15.27 4.949 0.757 5.097 0.950 11.753 120.171 6 7 1 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ For this analysis, the CSP acreage cap is 12.179 million acres including the 10 percent allocated to NIPF. This was the initial allocation
distributed to States shortly after closure of the initial CSP ranking period.
\b\ Includes financial and technical assistance.
NRCS noticed some large operations fell just below the cutoff line
in many of the pools for policy option 1, the actual ranking period.
These operations moved up the ranked list and effectively prevented the
distribution of the full amount of acres under the other policy
options. Their impact can be seen by examining the total acres in Table
2.
In examining the summaries of conservation performance points and
costs per point, the agency reached a similar conclusion regarding the
effectiveness of policy options 2 through 5 in changing the emphasis of
CSP between existing and additional activities (see Table 3). The
relatively insignificant changes in total conservation performance
points and dollars per point suggest that significant changes in the
ranking process yield few tangible results in practice. A closer
examination of the applications show considerable shifting of the
applications in terms of rankings, but few of the applications that
were ranked low during the actual ranking period moved up the list to
the level of approval.
Table 3--Summary of Conservation Performance Points and Cost per Point for CSP Policy Options
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dollars per point
Existing Additional -----------------------------------
activities activities Total points Additional
activities All activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
(millions of conservation performance points)
($)
-----------------------------------------------------------------------------------------
No CSP \a\.................................................... Indeterminate N/A N/A N/A N/A
PO-1.......................................................... 3,960 2,488 6,448 0.0573 0.0221
PO-2.......................................................... 3,964 2,368 6,332 0.0590 0.0220
PO-3.......................................................... 3,779 2,502 6,281 0.0564 0.0225
PO-4.......................................................... 3,920 2,398 6,319 0.0587 0.0223
PO-5.......................................................... 3,790 2,481 6,271 0.0576 0.0228
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Assumes CSP is not available to landowners. Data are not available to assess this situation.
\b\ Indeterminate.
Other possible reasons were identified to explain why the ranking
process produced such minor shifts in conservation performance points
and funding between existing and additional activities. Applicants, for
example, who were addressing a State's priority resource concerns
received more ranking points than applicants who chose to address fewer
priority resource concerns. As part of the policy analysis, it became
apparent that ranking factor 3 moved closely with ranking factor 1. A
recommendation in the conclusions and recommendations section breaks
this relationship with ranking factor 1, making it strictly a factor
that awards ranking points based on proposed new activities that assist
producers in meeting minimum stewardship levels of priority resource
concerns.
Another possible reason is the CMT and how activities and
conservation performance points are assigned. An additional reason is
the ranking process itself. Modifications to account for these two
reasons are detailed in the recommendations.
The results reported above and other secondary results from the
analysis of eligible applications and preapproved contracts in CSP's
initial ranking period substantiate many of the initial CEA findings
reported in the interim final rule. One primary finding was that the
policy constraints on the program posed serious challenges for the
model developers. It is obvious that these constraints will pose
similar challenges in implementing this program. In particular,
achieving the national annual acreage enrollment goal at the designated
average costs per acre mandated in legislation will be a challenge
given the heterogeneity of producers' initial resource conditions and
demand for enhancements. This cautionary observation held true in the
initial ranking period and appears to be a major concern in subsequent
ranking periods.
Second, the annual contract limit of $40,000 per contract imposed
by the interim final rule influences program
[[Page 31616]]
outcomes. CSP gains program acreage when large operations, 13.8 percent
of the preapproved contracts in the first ranking period, hit the
maximum annual payment limit and remain enrolled. Costs per acre for
the program decrease because program funding is spread over more acres.
As predicted though, CSP's acre constraint of 12.769 million acres
becomes the controlling factor because of the acres linked to the large
operations. Though NRCS received an apportionment of $229,842,000, the
financial assistance portion cannot be fully spent because the acreage
constraint was met for the initial CSP ranking period. Furthermore,
NRCS offices incur technical assistance costs associated with these
additional acres, regardless if the acres are capped for payment.
Third, the policy options that were part of the CEA in the interim
final rule proved useful in the final assessment. The different policy
scenarios reinforced the fact that CSP outcomes depend to a large
extent on the applications submitted for enrollment. The policy
scenarios also contributed to a better understanding of how the ranking
factors were defined and implemented.
Finally, program design and adaptive program management are
critical in satisfying the mandated constraints of this program. The
model results of the CEA used in the interim final rule showed that
caution must be used in setting land use payment rates. This is due to
the changing land use compositions and conservation performance
outcomes that resulted under each alternative policy option. Such
changes could be expected in subsequent ranking periods and alter the
acreage and conservation performance points produced. Such changes
would need to be included in the calculation of appropriate land use
payment rates that conform to the CSP statute, particularly the $18 per
acre national program cost constraint.
Conclusions and Recommendations
As part of the 2008 Act, Congress created the CSP and instructed
the Secretary of Agriculture to develop a program that compensates a
producer for ``* * * installing and adopting additional conservation
activities; and improving, maintaining, and managing conservation
activities in place at the operation of the producer at the time the
contract offer is accepted by the Secretary.'' Producers must also meet
minimum stewardship levels before they become eligible for CSP.
Acreage, budget, a national average price of $18 per acre, and a
maximum annual payment of $40,000 per contract established in the
interim final rule also complicate program implementation.
The CSP as currently implemented received more than enough
applications to make it a competitive program. Of the 15,015 eligible
applications, 10,743 were preapproved for enrollment, and those
selected were the highest ranked eligible applications. The preapproved
applications resulted in 61-39 percent split in conservation
performance points and 63-37 percent split in program payments between
existing and additional activities, respectively. The acreage
constraint limited the ability of NRCS to distribute all the funds
provided by Congress.
Though little guidance is given on a suitable split of financial
assistance funds between existing and additional conservation
activities, preliminary analysis indicates that the initial CSP ranking
period attracted practicing conservationists. Almost every applicant
met the stewardship threshold requirement at the time of application.
More than 80 percent of the applicants were meeting five resource
concerns at time of application. The $40 thousand cap per contract and
the requirement that all acres of an operation must be enrolled
impacted CSP. The acreage constraint became the limiting factor because
1,487 (13.8 percent) preapproved applications exceeded the cap, but
their acres were counted, making it impossible for NRCS to distribute
all the funds.
A total of five policy options were developed as candidates for
improving CSP's overall cost effectiveness at the national level. These
policy options are directly tied to CSP's ranking process. Under policy
option 1, the four ranking factors are equally weighted. In the
remaining options, each ranking factor is separately weighted five
times more important than the other factors. Based on the interim
analysis, the ranking process recommended and implemented for the first
CSP sign-up was policy option 1. This translated into an effective
weighting scheme of 25 percent for existing activities and 75 percent
for additional activities.
For the most part, these policy options exhibited their intended
impacts. With each change in the weights assigned to the ranking
factors, ranking scores changed, and applications moved up and down in
ranking based on their mix of existing and additional conservation
activities and whether priority resource concerns were being targeted.
With five times the weight assigned to ranking factor 1 (policy option
2), for example, NRCS observed applications with many existing
practices earning more ranking points than applications with fewer
existing practices and applications with similar additional activities.
When weights were assigned to ranking factors that captured additional
activities, NRCS observed the opposite. Applications with many
additional activities ranked higher than applications with a similar
complement of existing activities and applications with fewer
additional activities. Overall, policy options 2 through 5 did not
yield substantially different changes in conservation performance
points and financial assistance between existing and additional
activities. Analysis of the data suggests that this initial CSP ranking
period attracted practicing conservationists. NRCS expects future
ranking periods to be more representative of the larger agricultural
sector as others learn about CSP and the remaining population of
practicing conservationists yet to enroll declines with each ranking
period.
There is insufficient evidence of improved cost effectiveness to
replace policy option 1 with any of the other options. Prior to CSP
ranking period two, NRCS will review key program components--
eligibility requirements, minimum stewardship levels, conservation
activities and conservation performance points, CMT, and ranking factor
specifications--and make any necessary modifications. In addition, NRCS
will investigate other ranking factor processes, additional ranking
criteria, and separate prices for existing and additional conservation
performance points. As data becomes available and is analyzed from each
new ranking period, NRCS will make necessary changes to improve CSP's
cost effectiveness.
Discussion of Program
The 2008 Act amended the Food Security Act of 1985 to establish the
CSP and authorize the program in fiscal years 2009 through 2012. The
CSP statute provides that the Secretary will carry out a stewardship
program to encourage producers to address resource concerns in a
comprehensive manner by (1) undertaking additional conservation
activities, and (2) by improving, maintaining, and managing existing
conservation activities. On July 29, 2009, NRCS published an interim
final rule for CSP with a 60-day public comment period. On September
21, 2009, the public comment period was extended 30 days.
NRCS explained in the preamble of the interim final rule, that it
will provide financial and technical assistance to eligible producers
to
[[Page 31617]]
conserve and enhance soil, water, air, and related natural resources on
their land. Eligible lands include cropland, grassland, prairie land,
improved pastureland, rangeland, NIPF, agricultural land under the
jurisdiction of an Indian tribe, and other private agricultural land
(including cropped woodland, marshes, and agricultural land used for
the production of livestock) on which resource concerns related to
agricultural production could be addressed.
The NRCS State Conservationist, in consultation with the State
Technical Committee and local working groups, will focus program
impacts on natural resources that are of specific concern for a State,
or the specific geographic areas within a State. Applications will be
evaluated relative to other applications addressing similar priority
resource concerns to facilitate a competitive ranking process among
applicants who face similar resource challenges. The program is
national in scope, and participation is voluntary.
CSP provides participants with two possible types of payments: (1)
Annual payments will be offered through split-rate payments; one
payment for installing and adopting additional activities, and one for
improving, maintaining, and managing existing activities. This payment
structure is different from the annual payments offered for contracts
selected in the 2009 enrollment period. Contracts selected in the 2009
enrollment period will receive an annual payment that combines the
conservation performance from additional and existing conservation
activities. Annual payments may also include compensation for on-farm
research and demonstration activities or pilot testing, and (2)
Supplemental payment for the adoption of resource-conserving crop
rotations on cropland.
The 2008 Act directed the development of the CMT to estimate the
level of environmental benefit to be achieved by a producer in
implementing conservation activities. NRCS successfully implemented the
CMT during its first sign-up. The CMT effectively evaluated the
stewardship threshold requirements, estimated conservation performance,
generated a ranking score, and calculated conservation performance
payment points. Preliminary data analysis showed the CMT fairly
evaluated conservation performance on different sizes and types of
operations, across different land uses, for all regions of the country.
Although the tool performed well, NRCS recognized that improvements
were necessary to improve clarity of the questions being asked of
clients. Therefore, NRCS assembled a team of technical experts to
analyze the questions in the CMT that could be misunderstood, identify
those needing adjustment, and provide recommendations to the Chief.
NRCS designed the program to recognize excellent stewards and
deliver valuable new conservation on every CSP contract. The agency
developed multiple program features to enable it to realize this
objective, including:
(1) Bundling enhancements to encourage participants to address
additional resource concerns in a more comprehensive manner. NRCS
updated its enhancement list and adopted the concept of bundling for
the second ranking period. Certain enhancements will be offered as
``bundles.'' The bundling concept enables participants and the nation
to realize conservation benefits from the synergy that results when
activities are implemented as a system. Participants who elect to
bundle enhancements receive a positive adjustment in their ranking
score and payments.
(2) Calculating payments based on a process that considers
conservation performance points rather than just acres. Each
conservation activity has a performance value. Basing payments on
conservation performance points rather than a rate per acre enables
participants to influence their payment rates according to the type and
number of conservation activities they are willing to adopt.
(3) Placing a higher value on payments for additional activities
versus existing activities through split-rate payments. For contracts
selected for enrollment during the first ranking period, NRCS provided
participants with an annual payment. Although the single annual payment
was calculated giving consideration to both new and existing
activities, participants could not readily distinguish the value of
each since the participant received one payment. For the second and
future application ranking periods, NRCS intends to calculate payments
for additional conservation activities at a higher payment rate than
existing activities with the goal of providing a majority of payments
to compensate producers for implementing additional conservation. In
the initial ranking period, 63 percent of the payments were attributed
to existing conservation activities. NRCS believes this higher payment
for additional conservation performance will encourage producers to
apply additional activities and serve to maximize net additional
environmental benefits as much as possible beyond the current 63:37
ratio.
(4) Requiring the adoption of additional conservation activities to
earn annual payments. To earn annual payments for an eligible land use,
a participant must schedule, install, and adopt at least one additional
conservation activity on that land-use type. Eligible land-use types
that fail to have at least one additional conservation activity
scheduled, installed, and adopted will not receive annual payments.
(5) Implementing a State allocation process that considers the
extent and magnitude of conservation needs associated with agriculture
production. The State allocation process will consider natural resource
data from sources like the NRI related to the nation's major resources
concerns, including water quality and quantity, soil quality, air
quality, and wildlife habitat.
(6) Developing contract renewal criteria that require new
conservation activities. In order to renew a contract after the initial
contract period, participants will need to expand the degree, scope,
and comprehensiveness of conservation activities by meeting an expanded
stewardship threshold requirement and agreeing to adopt additional
activities during the renewal period.
In establishing the measures and methodologies NRCS will use to
monitor program performance, the agency believes the CMT will assist in
measuring outcomes. The conservation performance the CMT estimates is
measured in terms of relative physical effects; they are not true
environmental benefits. However, the CMT performance estimates are a
step forward from output measures, like acres of conservation
practices, used by former programs. NRCS acknowledges challenges, but
intends to pursue the use of CEAP results with CMT performance data to
help produce meaningful estimates of environmental effects accomplished
through CSP.
NRCS received numerous comments on CSP as it relates to organic
farming, including that the regulations and overall design of the
program should include specifically organic conservation activities, as
well as ensuring that all conservation activities rewarded under the
program include appropriate variations relevant to organic farms where
the standard conservation practice may be inappropriate for organic
systems; organic crop and livestock systems should be recognized for
their environmental benefits.
Since organic producers have adopted a number of conservation
measures that
[[Page 31618]]
have significant environmental benefits, CSP provides opportunities for
their participation. The NRCS document entitled ``The Conservation
Stewardship Program's Contribution to Organic Transitioning''
highlights how CSP can be used by organic producers. The questions in
the CMT are designed to assess conservation outcomes on the land. As
such, the questions do not specifically distinguish between organic and
non-organic producers. However, in most instances organic producers
should score very well in the CMT by the use of cover crops,
perennials, diverse rotations, and limited use of pesticides. In
addition, CSP offers a number of enhancements targeted specifically at
organic producers.
NRCS takes seriously its responsibilities related to providing
conservation opportunities to organic producers. The agency is working
to ensure its field office staffs have adequate training to work with
organic farmers. Individual States conducted numerous training sessions
on conservation planning with organic producers. A national
teleconference on organic certification has been conducted, and plans
are in place to work with several private organic groups to provide
training to NRCS State specialists on organic farming systems.
Summary of Initial Ranking Period
NRCS began accepting program applications for the initial ranking
period on August 10, 2009. The cut-off for the initial ranking period
was September 30, 2009.
Each application was evaluated for basic eligibility criteria:
applicant eligibility, land eligibility, and the stewardship threshold
requirement. To meet the stewardship threshold requirement, an
applicant must meet or exceed the threshold level for at least one
resource concern at the time of the application, and at least one
priority resource concern by the end of the contract period.
NRCS assisted applicants with completing a resource inventory of
their operation using the CMT. The CMT estimates conservation
performance to determine if the application meets the minimum
stewardship threshold requirement. Conservation performance points
estimated by the CMT are also used to determine application ranking
scores and contract payment levels.
The conservation performance ranking score is used to determine the
priority of funding for an applicant. Applicants will be funded
starting with the highest score and working down the list until acres
are exhausted. The conservation performance ranking score is based on
five factors:
(1) The level of conservation treatment on priority resource
concerns at the time of application.
(2) The degree to which treatment on priority resource concerns
increases conservation performance.
(3) The number of priority resource concerns to be treated to meet
or exceed thresholds by the end of the contract.
(4) The extent to which other resource concerns will be addressed
to meet or exceed stewardship thresholds by the end of the contract.
(5) A tie-breaker factor is used in the event that application
ranking scores are similar. The application that represents the least
cost to the program will be given higher priority.
To reach CSP's authorized annual acreage enrollment limit of
12,769,000 acres, NRCS allocated acreage to States based primarily on
each State's proportion of eligible land. Within States, NRCS pre-
approved applications for funding based on ranking scores and funding
pool acreage allocations. As of December 1, 2010, over 10,700
applications were pre-approved for program participation.
Preliminary analysis of the initial ranking period provided NRCS
with some key findings.
(a) Producer interest in CSP was high. During the initial ranking
period, NRCS received over 21,000 applications on an estimated 33
million acres from across the Nation including the Caribbean and
Pacific Island areas. In general, applicants were diverse in terms of
size of operation, land use type, and geographical location. Rangeland
was the land use most offered for program consideration (51 percent of
acres), followed by cropland (37 percent), NIPF (7 percent), and
pastureland (5 percent).
(b) Water quality (89 percent of pools), plants (85 percent pools),
wildlife (77 percent pools), soil quality (nearly 70 percent of pools)
were the top priority resource concerns identified in the funding pools
by the States.
(c) Eligible applicants share a common characteristic--they are
excellent stewards of the land. In fact, 80 percent of applicants met
five resource concerns at the time of application. Conservation
performance payment points from existing activities equaled 63 percent
of the total points generated. This dominance of practicing land
stewards in the initial ranking period limited the agency's ability to
change the relative weights on the factors in the ranking process and
substantially alter the distribution of conservation performance
payment points between existing and additional activities. Future sign-
ups will likely draw applicants from the larger agricultural community
where the level of stewardship may be lower, thus giving additional
activities a larger role in the ranking of applications.
Discussion of Comments and Regulatory Changes
NRCS solicited comments on the CSP interim final rule from July 29,
2009, through October 28, 2009. The original comment period ended on
September 28, 2009, but was extended through October 28, 2009, to
enable the public to submit comments throughout the program's first
enrollment period. NRCS received 208 letters representing 208
individual signatures. The total number of letters received includes
five identical duplicate letters and eight letters from eight
individuals submitting more than one unique letter. A total of 1,534
comments were assessed during the content analysis process.
In addition to requesting public comment in general on the rule and
the environmental analysis, NRCS sought comment on the following
specific issues:
Ranking Factors--NRCS requested input on the appropriate weighting
of the five ranking factors that are intended to maximize environmental
benefits while maintaining consistency with the statutory purposes of
the program.
Payments--Setting the annual payment rates represented a
significant challenge for NRCS. In addition to managing the program
within the national average rate of $18 per acre, the 2008 Act also
provides an acreage enrollment limit of 12,769,000 acres for each
fiscal year. To address these constraints, NRCS used the first ranking
period as a payment discovery period to arrive at a uniform payment
rate per conservation performance point by eligible land use type. NRCS
requested public comment on ways to address program acreage and payment
constraints, refine the payment approach, and make annual payments more
consistent and predictable. Additionally NRCS sought public comment on
the proper distribution of CSP annual payments between payment for
additional activities and payment for existing activities.
Contract Renewal Criteria--Section 1470.26 in the interim final
rule provided that NRCS will permit contract renewals to foster
participant commitment to increased conservation performance. NRCS
sought public comment on the contract renewal criteria.
[[Page 31619]]
State Allocations--NRCS requested comments on the factors used to
allocate acres to States.
Stewardship Threshold--NRCS requested input on whether meeting the
stewardship threshold on one resource concern and one priority resource
concern is adequate, or if that number should be greater.
Wildlife as Priority Resource Concerns--NRCS requested comments on
whether or not at least one of the priority resource concerns should
specifically be identified to address wildlife habitat issues.
The topics that generated the greatest response include 1470.7
Enhancements and Conservation Practices, 1470.20 Application and
Ranking, and 1470.24 Payments.
The public comments are addressed by section number. The CSP
regulation is organized into three subparts: Subpart A--General
Provisions; Subpart B--Contracts; and Subpart C--General
Administration. Below is a summary of the comments received for each
section and the agency response.
Subpart A--General Provisions
Section 1470.1 Applicability
A total of 16 comments were received. This section sets forth the
purpose, procedures, and requirements of CSP. The subject of the
comments varied considerably. Commenters offered thoughts and ideas
regarding the intent of the program, program goals, and whether CSP
appeals to new farmers or small farmers using CSP in coordination with
other Farm Bill programs, organic production, local food sources, and
education and training.
NRCS received four comments in support of the program intent.
Commenters expressed that this program is an improvement over the
Conservation Security Program from the perspective of fairness in
measuring sustainability and as a tool that has the possibility of
being an agent of change, making agriculture more sustainable and
coexisting, or as a part of essential ecosystems; the new CSP holds
tremendous potential to make a significant contribution to assisting
farmers, ranchers, and private forest landowners in solving some of the
nation's most pressing environmental problems. A third identified that
implementation in all States is critical to maximizing the program's
potential; the fourth commented that the program is long overdue--both
farms and the environment will benefit from the program. Some
commenters expressed that CSP should be available for small farmers.
NRCS Response
No changes are made to the rule in response to these comments. NRCS
agrees that CSP can make a significant contribution in assisting
farmers, ranchers, and private forest landowners with their
conservation efforts regardless of the size of the operation,
production type, or land use.
Comments
Three commenters expressed thoughts related to program goals. One
commenter expressed that sustainability is related to not only soil
conservation and crop yields but also an ecological responsibility. CSP
goals should include helping farmers in similar farming systems become
more sustainable. One commenter supported the organic production
assistance as long as the conservation priorities and requirements for
air, water, soil, and wildlife are being met. The third commenter
advised that NRCS should follow the intent of the law. The statutory
purpose of CSP is comprehensive resource management with emphasis on
producers improving or adding additional conservation activities to
their operation.
NRCS Response
No changes are made to the rule in response to these comments. NRCS
determined the regulation aligns with the commenters recommendations.
Section 1470.1, paragraph (d) identifies that NRCS will provide program
participants financial and technical assistance for the conservation,
protection, and improvement of soil, water, and other related natural
resources. By addressing resource concerns in a comprehensive manner,
farming systems will become more sustainable.
NRCS is following the program's intent provided for in statute. The
statute directs the Secretary to carry out a CSP to encourage producers
to address resource concerns in a comprehensive manner by:
(a) Undertaking additional conservation activities; and
(b) Improving, maintaining, and managing existing conservation
activities.
Comments
NRCS received concerns about CSP only reaching those who already
participate in conservation programs, as well as a recommendation for
more levels of conservation in the categories in both the CMT and
enhancement list. While the overall score may not allow a lower
conservation threshold to enter a contract under current acreage
limitations, demand for the program and ecological benefits to the
public could drive an increase in legislative acreage and funding
levels.
NRCS Response
No changes are made to the rule in response to these comments. NRCS
disagrees that the CSP only reaches farmers who currently use
conservation programs. NRCS conducts outreach to all producers without
limiting participation because of size or type of operation or previous
participation in conservation programs. The level of producer interest
for the initial ranking period demonstrates that the program is
attractive to all producers who are willing to install new or improve,
maintain, or manage existing conservation systems.
It is clear by the establishment of the stewardship thresholds in
the CSP statute that CSP is to be delivered to lands that have existing
conservation measures addressing at least one resource concern and must
meet one priority resource concern by the end of the contract period.
NRCS places no priority on existing conservation measures having been
previously installed under USDA or other conservation programs. NRCS
will continue to provide planning assistance to other cost-share
programs for beginning resource stewards and those not approved for
CSP. As producers improve their environmental performance they may have
their application re-evaluated in subsequent ranking periods.
NRCS agrees that demands for the program and ecological benefits
may influence the authorized acreage and funding levels.
Comments
Four commenters expressed recommendations related to CSP being a
working lands program. The commenters largely want the program to be
targeted to the needs of working agriculture lands and their operators
and improving the land for the next generation.
NRCS Response
No changes are made to the rule in response to these comments. The
program rules and ranking process focus on conservation activities on
working lands. In addition, the majority of the conservation activities
available through the program are specifically targeted to working
lands.
Comments
NRCS received comments related to placing particular focus,
attention,
[[Page 31620]]
weight, and publicity on programs that increase local food that is
grown using local resources.
NRCS Response
Although NRCS welcomes new ideas related to working with small
farms, local food production, and improving the resource conditions on
these farms, no change is made to the rule in response to these
comments. In recognition of the importance of the locally grown
movement to the nation's food producers, the program offers an
enhancement specifically for locally grown and marketed farm products
for those interested in improving their resource stewardship and
selling produce through local markets.
Comments
One commenter requested NRCS clarify that CSP can be used in a
coordinated manner with all other Farm Bill conservation programs to
address resource concerns in a comprehensive manner. This approach is
consistent with the Managers' Report that encourages NRCS to use other
conservation programs to assist landowners in achieving conservation
objectives. The rule should clarify that enrollment in other
conservation programs, such as EQIP and WHIP, does not exclude
producers from CSP, and these programs can be used in conjunction with
CSP to address resource concerns provided that producers do not receive
duplicate payments on the same acres.
NRCS Response
NRCS promotes the use of other programs to address resource
concerns in a comprehensive manner. The agency allows applicants to
identify other practices they are willing to implement to meet resource
concerns that they are not currently meeting. These additional
practices could be cost-shared through other NRCS programs if the
practices are not being compensated through CSP. In addition, NRCS
encourages producers that are not currently eligible for CSP to contact
their NRCS office or visit the Web site at http://www.nrcs.usda.gov/programs/ to find out about other conservation programs that can assist
them on meeting their conservation needs. To address the concerns by
the public, NRCS amends the rule in paragraph 1470.7 by adding
paragraph (c) to read, ``CSP encourages the use of other NRCS programs
to install conservation practices that are required to meet the agreed-
upon stewardship thresholds, but the practices may not be compensated
through CSP.''
Comments
One commenter offered that there is a need for expert education and
training and close CSP implementation scrutiny.
NRCS Response
No changes are made to the rule in response to this comment. NRCS
agrees that its employees and clients need to be well informed about
this program and that it needs to monitor operations to ensure the
program is being applied consistently across the country. To address
the educational component of the comment, NRCS made available to the
public detailed documentation explaining program processes, payment
rate establishment, CMT matrixes, questions, and scoring calculations.
Documentation can be found at http://www.nrcs.usda.gov/programs/new_csp/csp.html. In addition, NRCS conducted a series of demonstrations
and informational meetings for internal and external customers.
Section 1470.2 Administration
Comments
A total of 35 comments were received on section 1470.2,
``Administration.'' This section describes the roles of NRCS at the
national and State levels. Most of the comments related to acreage
enrollment levels and historically underserved producers. However, a
few comments were received related to sign-up administration, and one
comment related to pollinators.
One commenter expressed the need for NRCS to ensure policies are
being implemented consistently across field offices. The commenter
identified that the farmers they work with noted clear variability
between county offices in the interpretations of various aspects of
CSP, both in answering CMT questions and the application of
conservation practices and enhancement activities.
NRCS Response
NRCS recognizes the need for consistency in implementing this
program. NRCS will ensure training of field office staff on a
continuous basis to ensure quality program delivery.
Sign-Up Periods
Comments
Four comments were received related to sign-up periods; the
commenters are concerned about the timing of the sign-up, urging NRCS
to choose sign-up periods carefully and avoid closing ranking periods
and farm evaluations during busy times of the year for farmers, such as
spring planting and fall harvest. NRCS received inquiries regarding
whether allocated acres will be transferred to other States if they are
not used, and how the rankings are created other than the electronic
tool available only to NRCS personnel; and one commenter expressed that
agriculture funds are not intended just for an ever shrinking group who
are growing certain commodities.
NRCS Response
NRCS recognizes that having a sign-up at a time that is suitable to
its clients is critical for the success of the program. Therefore, NRCS
offers a continuous sign-up which allows producers to submit their
application at any time. NRCS is fine-tuning the CMT design so it can
be used to evaluate applications accepted throughout the continuous
sign-up period, allowing for applications to be ready for evaluation in
advance of an announced sign-up and funding cycle. NRCS will make every
effort to enable those interested in applying for the program to have
ample time to do so.
Regarding the need for information about ranking, ranking pools
within States were established based on geographic area boundaries.
Each State identified, with review and input from the State Technical
Committee, a minimum of three and a maximum of five priority resource
concerns for each geographic area. The priority resource concerns
selected for each ranking pool are used on three out of the four
ranking factors, thereby ensuring that program dollars are addressing
the critical resource concerns for each State ranking pool area.
Priority resource concerns rank higher than non-priority resource
concerns.
In any fiscal year, acres allocated to a State that are not
enrolled by a date determined by the Chief, may be reallocated with
associated financial and technical assistance funds to another State
for use in that fiscal year.
The CMT is the only approved tool to determine the relative
conservation physical effects of conservation activities on natural
resource concerns and energy to estimate the existing conservation
performance levels and the additional conservation performance
improvement to be achieved by an applicant. The tool is currently Web
based and linked to the NRCS Programs Contracting Software. There is no
way to make the tool available to the public at this time. However, it
is NRCS' intention to move the tool to a Web environment where it can
be accessible by the public. Until these adjustments are complete, NRCS
will provide producers with a hard copy of the questions that may be
used to evaluate their applications if requested.
[[Page 31621]]
NRCS disagrees that program funds are targeted to a small select
group. The CSP is a nationwide program open to all eligible producers
regardless of the type of crops that are grown. Payments through CSP
are not subsidies, but rather a contract payment for providing
environmental benefits from maintaining existing conservation
activities and adopting new conservation activities. CSP is not limited
to commodity producers and is ``operation size'' neutral in its
application ranking.
Comments
One commenter requested clarification on how NRCS arrived at its
policy option findings by evaluating in its decisionmaking matrix both
the computerized-modeling formula and the key statutory-policy phrase
``to the maximum extent practicable.''
NRCS Response
The policy option findings that were reported in the benefit-cost
analysis were generated using a model that incorporated most of the
CSP's program constraints, as well as using secondary data on the
characteristics of potential participants and a prototype of the CMT.
The CMT was not complete when the analysis was done. The objective of
the analysis was to estimate the direction of change in program
outcomes given certain policy options--not to predict with certainty
what future program enrollment and outcomes would be. In that analysis,
any outcomes that involved violations in the program constraints were
reported, even though care was taken so as to meet them ``to the
maximum extent practicable.''
Acreage Enrollment Levels
Comments
Twenty-two comments were received relaying the same message; the
entire acreage designated by Congress should be available over the life
of the Farm Bill. NRCS also received comments that it should decrease
its administrative costs. The conservation stewardship plan will
clearly be an important integral part of any contract, but the plan
development and oversight costs must be balanced with the
implementation costs borne by the participating farm operator. One
commenter recommended a new paragraph (4) be added to 1470.2(c) to
stipulate that NRCS will develop and make available the organic
crosswalk; one commenter recommended NRCS change paragraph 1470.2(c)(1)
by inserting ``each year'' immediately prior to ``to determine
enrollments.'' In paragraph (d) insert after ``$18 per acre'' the
following words directly from the statute: ``During the period
beginning on October 1, 2008, and ending on September 30, 2017.''
NRCS Response
NRCS conducted an analysis using the Cost of Programs Model to
determine the funds needed to promote and deliver the CSP. In addition,
real time application data was used to establish the national payment
rates to determine the distribution of financial assistance to meet
program constraints. The CSP presents a significant shift in how NRCS
delivers and provides conservation program payments. Under CSP,
participants are paid for conservation performance. Therefore, it is
inappropriate to compare a traditional program like EQIP with CSP.
NRCS does not agree that additional direction related to providing
assistance for organic production is necessary. The statute provides
that outreach and technical assistance are available to specialty crop
and organic producers and their ability to participate in the program.
Additionally, the program offers activities for the transition to
organic cropping and organic grazing systems.
To achieve the conservation goals of CSP, NRCS will:
(1) Make the program available nationwide to eligible applicants on
a continuous application basis with one or more ranking periods to
determine enrollments. One of the ranking periods will occur in the
first quarter of each fiscal year, to the extent practicable; and
(2) To add clarity to the regulation, NRCS will amend paragraph
1470.2(d) to read as follows: During the period beginning on October 1,
2008, and ending on September 30, 2017, NRCS will, to the maximum
extent practical: (1) Enroll in CSP an additional 12,769,000 acres for
each fiscal year, and (2) Manage CSP to achieve a national average rate
of $18 per acre, which includes the costs of all financial and
technical assistance, and any other expenses associated with program
enrollment and participation.
Historically Underserved Populations
Comments
Several comments were received related to historically underserved
producers with the majority of the concerns directed to socially
disadvantaged farmers or ranchers and beginning farmers or ranchers.
One commenter expressed that the CRIA is incomplete and appeared to
overstate conclusions. Additional analysis is necessary, as is
implementation of transparency and accountability provisions in section
14006 of the Farm Bill. Another commenter recommended NRCS require and
conduct reviews in each State to address anticipated needs as well as
gaps in participation in specific programs by federally recognized
Indian tribes and by socially disadvantaged and other historically
underserved producer groups by race, gender, and ethnicity. A third
commenter expressed that NRCS must have a methodology for informing
socially disadvantaged producers of the reasons for the refusal of a
CSP contract. Another requested that NRCS ensure the set-asides for
socially disadvantaged farmers or ranchers and beginning farmers or
ranchers are swiftly and thoroughly implemented. One commenter
requested sections 1470.2(e) and 1470.20(1)(3) be revised to establish
that the 5 percent set-aside for beginning farmers or ranchers and for
socially disadvantaged farmers or ranchers be target floors, not
ceilings.
NRCS Response
NRCS has standard procedures to formally inform all applicants of
the reasons they were not awarded a CSP contract. Along with the
determination, applicants are offered appeal rights. This agency policy
can be found in the Conservation Program Contracting Manual, Part 512
located at http://directives.sc.egov.usda.gov/RollupViewer.aspx?hid=25932.
CSP policy provides that each State set aside a minimum of 5
percent of their State acre allocation for these ranking pools. To add
clarity and provide flexibility to set aside more than 5 percent, NRCS
moved the language related to ranking pools for these groups by
deleting the text in 1470.2(e) and adding text in 1470.4(b) to read as
follows: Of the acres made available for each of fiscal years 2009
through 2012 to carry out CSP, NRCS will use, as a minimum: (1) 5
percent to assist beginning farmers or ranchers, and (2) 5 percent to
assist socially disadvantaged farmers or ranchers. Paragraph (b) has
been redesignated as paragraph (c) and amended for clarity to read ``In
any fiscal year, allocated acres that are not enrolled by a date
determined by NRCS, may be reallocated with associated funds for use in
that fiscal year under CSP.''
Section 1470.3 Definitions
Comments
Thirty-eight comments were received on section 1470.3,
``Definitions.'' This
[[Page 31622]]
section sets forth definitions for terms used throughout this
regulation.
Agriculture Land
Comments
One commenter requested NRCS insert ``including energy'' after
``agricultural products.''
NRCS Response
NRCS is retaining the definition in the interim final rule to be
consistent with other NRCS programs. Crops for producing energy are
included in the term agricultural products. Although NRCS is retaining
the definition for consistency and clarification purposes, NRCS adds
the following text to the end of the definition: ``Agriculture lands
may also include other land and incidental areas included in the
agricultural operation as determined by NRCS. Other agricultural lands
include cropped woodland, marshes, incidental areas included in the
agriculture operation, and other types of agricultural land used for
production of livestock.''
Agriculture Operation
Comments
One commenter responded that the definition is inconsistent with
the statute, which reads ``eligible land shall include all acres of an
agricultural operation of the producer, whether or not contiguous, that
is under the effective control of the producer at the time the producer
enters into a stewardship contract.'' There is a conflict between the
words ``under effective control * * * for the term of the proposed
contract'' vs. ``under effective control * * * at the time the producer
enters into a stewardship contract.''
One commenter expressed support for the definition in the interim
final rule because it allows landowners to participate.
NRCS Response
NRCS agrees that the definition of agriculture operation needs to
be consistent with the intent of the statute. Therefore, NRCS amends
the definition of agricultural operation and adds a definition for
effective control to clarify that control of the land is needed from
the time the producer enters the stewardship contract and for the
required period of the contract. Agricultural operation means all
agricultural land and other land, as determined by NRCS, whether
contiguous or noncontiguous:
(1) Which is under the effective control of the applicant, and
(2) Which is operated by the applicant with equipment, labor,
management, and production or cultivation practices that are
substantially separate from other operations.
Effective control is defined to mean the possession of the land by
ownership, written lease, or other legal agreement and authority to act
as decisionmaker for the day-to-day management of the operation both at
the time the applicant enters into a stewardship contract and for the
required period of the contract.
Beginning Farmer or Rancher
Comments
One commenter requested NRCS change the definition of beginning
farmer or rancher to make it conform to the definition of socially
disadvantaged farmer or rancher with respect to entities. In both
cases, entities in which at least 50 percent ownership in the farm
business is held by the target population should qualify.
NRCS Response
No changes are made to the rule in response to this comment. NRCS
retains the agency's official definition that was published in the
interim final rule to be consistent with other USDA and NRCS programs.
Conservation Planning
Comments
One commenter requested the definition be revised to bring it into
accord with statute concerning conservation planning, including the
addition of conservation planning in the conservation activities
definition, the contract definition, and the payments section.
NRCS Response
NRCS did not include conservation planning as part of the
conservation activities to be compensated because the producer will not
incur any cost for planning. The CSP delivery model necessitates a
conservation stewardship plan prior to contract obligation. Therefore,
the plan must precede the contract for which payment is granted. The
authorizing language provides that payments will not be provided for
conservation activities for which there is no cost incurred or income
forgone. No changes are made to the rule in response to this comment.
Conservation Activities
Comments
One commenter requested NRCS change the definition to include
enhancements and a change to the enhancement definition to incorporate
environmental quality and to explicitly include the management and
maintenance of existing enhancements and the adoption of new
enhancements.
One commenter expressed concern that the definition in the statute
includes agricultural drainage systems and that the wording may promote
wetland drainage. The commenter encouraged NRCS to utilize other
conservation programs such as those available through the continuous
Conservation Reserve Program (CRP) (buffers, filter strips, etc.) to
achieve priority resource concerns such as water quality.
NRCS Response
NRCS retains the current definition to be consistent with the
language in the legislation. NRCS does not feel it is appropriate to
add the program purpose to the definition of conservation activities.
NRCS acknowledges the concern related to the language in the
statute that may promote wetland drainage. NRCS addressed this concern
by offering two agricultural drainage water management enhancements
with specific criteria to manage existing drainage system to reduce the
potential for water quality problems from drainage water and to
manipulate systems for wildlife habitat benefits. The program promotes
buffers, filter strips, and other vegetative practices to address water
quality concerns as well as other natural resources.
Conservation Practice
Comments
NRCS received a recommendation that it amend the definition to
include ``commonly used to meet a specific need in planning and
carrying out soil and water conservation programs, including wildlife
management and forest health for which standards and specifications * *
*'' The NRCS conservation practice standards not only address soil and
water conservation but also wildlife habitat management and forest
health.
NRCS Response
NRCS agrees with the comment and amends the definition to read as
follows: Conservation practice means a specified treatment, such as a
structural or vegetative practice or management technique, commonly
used to meet a specific need in planning and carrying out conservation
programs for which standards and specifications have been developed.
Conservation practices are in the NRCS Field Office Technical Guide
(FOTG), Section IV, which is based on
[[Page 31623]]
the National Handbook of Conservation Practices.
Enhancements
Comments
One commenter recommended NRCS change the definition for
``enhancements'' to read ``a type of activity and the associated
infrastructure and equipment installed and adopted to treat natural
resources and improve conservation performance.''
NRCS Response
No change is made to the rule in response to this comment. NRCS is
retaining the current definition of enhancements. The definition
provides that enhancements are a type of conservation activity used to
treat natural resources and improve conservation performance. This
includes, by implication, the ``infrastructure and equipment''
necessary for an enhancement. In many cases enhancements are management
actions that do not require equipment or infrastructure.
Management Measure
Comments
One commenter requested NRCS insert ``or conservation system''
after ``conservation practice.''
NRCS Response
No change has been made to the rule in response to this comment.
NRCS retains the current definition of management measure. A
conservation system could be considered a management measure.
Nonindustrial Private Forest Land
Comments
NRCS received four comments on the definition of NIPF. One
commenter supports the definition as written in the interim final rule.
Another commenter requested NRCS remove or qualify the phrase ``or is
suitable for growing trees'' to preclude the planting of trees in
places that will further diminish habitat for at-risk species. A third
commenter requested clarification on the overlap that exists between
forest land and incidental forest lands on agricultural operations by
defining incidental forest lands under the agricultural land
definition. A fourth commenter requested the ``agriculture land'' and
``agricultural operation'' definitions be updated to include NIPF.
NRCS Response
The 2008 Act provides the definition of NIPF which is applicable to
all Title 2 conservation programs, including CSP; therefore, NRCS keeps
the current definition as provided in the interim final rule.
NRCS is preventing an overlap between NIPF and incidental forest
land by not allowing incidental forest land to be included in an
agricultural operation contract for program payments. However, if an
applicant designates the forest land for funding consideration, then it
will be considered as a component of the operation and will be offered
as separate application.
Resource-Conserving Crops
Comments
NRCS received a significant number of comments on the definition of
resource-conserving crops. Seventeen commenters requested that the
definition specifically require a perennial grass, legume, or legume-
grass mixture for use as a forage, seed for planting, or green manure
to be part of the rotation. A number of these commenters also expressed
that rotations that include only crops eligible for Farm Bill commodity
subsidies should not qualify as resource-conserving.
Although one commenter supported the definition of resource-
conserving crop and the use of supplemental payments for implementing
resource-conserving crop rotations, many more were critical. Critical
comments included the concern that a commodity crop rotation with
``high'' residue is not a sufficiently effective practice; NRCS should
return to the strong definition used for the 2005 CSP interim final
rule to ensure that farmers are being paid for significant
environmental benefits; NRCS has chosen to allow the simplest of
rotations, some of which result in no or close to no conservation
benefits and are simply standard, production-related rotations;
definition fails to meet the intent of the Farm Bill managers who ``do
not intend for the Secretary to pay for no-till or other common
practices that have no cost to the producers; and fix the definition so
that it clearly rewards complex rotations that deliver significant
environmental benefits and so that farmers implementing rotations
rightly merit the supplemental payments.
NRCS Response
NRCS has evaluated all comments received on the definition of
``resource-conserving crop'' and revises the definition to read as
follows: resource-conserving crop means a crop that is one of the
following: (1) A perennial grass, (2) a legume grown for use as forage,
seed for planting, or green manure, (3) a legume-grass mixture, and (4)
a small grain grown in combination with a grass or legume, whether
inter-seeded or planted in rotation.
Section 1470.4 Allocation and Management.
Section 1470.4, ``Allocation and management,'' addresses national
allocations and how the proportion of eligible land will be used as the
primary means to distribute CSP acres and associated funds among
States. NRCS received three comments on allocations in general and
seven comments on State allocations.
General Comments
One commenter requested allocations be conducted fairly by not
being skewed towards large farms or established players. The commenter
also requested a landscape management perspective be employed to
maximize public benefit at the lowest cost per watershed.
Another commenter requested that NRCS work with other Federal
agencies, including the Environmental Protection Agency (EPA), U.S.
Geological Survey, U.S. Fish and Wildlife Service, and State natural
resource agencies to identify the relative extent and magnitude of
particular conservation needs associated with agricultural production
in each State. The States with the greatest conservation needs should
be prioritized, but their ranking should still be contingent on factor
(ii), the degree to which implementation of CSP will impact the natural
resource needs.
A third commenter questioned why, on page 37503 (table 1), the NIPF
component (approximately 1.269 million acres) was not included in the
analysis and whether or not the absence of that information would
influence the choice of policy options.
NRCS Response
No changes are made to the rule in response to the comments. The
regulatory text and the process for determining State allocations is
not skewed toward large farms. The State acre allocations are based on
each State's proportion of eligible acres to the number of eligible
acres in all States and other consideration of funds, as determined by
the Chief. NRCS used the 2003 NRI and 2007 Agricultural Census (AK, HI,
Guam, and PR) data to determine the percent of agricultural lands
(cropland, pastureland, and rangeland) per State. The National Woodland
Owner Survey, 2006, from the U.S. Forest Service (USFS), Forest
Inventory Analysis data was utilized to
[[Page 31624]]
determine the percent of NIPF per State. Once those values were
established, the percentages were applied against the available
agricultural lands (cropland, pastureland, and rangeland) for CSP which
is 11,492,100 and against the 1,276,900 for NIPF, providing an
equitable acreage allocation based on the national values. NRCS will
also give consideration to conservation needs and the degree to which
CSP implementation impacts those needs in future year's allocations.
NRCS is incorporating the actual data for all applicants from the
initial ranking period in the final CEA. Although the initial CEA tried
to control for the absence of NIPF, this final analysis will explicitly
account for the exact acreage and budget outlays associated with NIPF.
It is expected that the final CEA will be greatly improved with this
additional information.
State Allocations--Comments Supporting the State Allocation Process
Two commenters expressed support for the acreage allocation system
used to determine the acres available for each State in the first sign-
up period and in the regulation. The one commenter opined that the
acreage allocation process worked very well and requested the process
be continued for the life of the program. The other commenter expressed
that the allocation factors established by section 1238(b)(2)(A) and
(B) of the Farm Bill and section 1470A(a)(2)(i) and (ii) of the rule
are important for ensuring CSP does the most it can to drive
environmental improvement. These factors can and should be emphasized
by NRCS in making acreage allocations to States.
Another commenter expressed basic agreement with the interim final
rule on allocations but urged sparing use of the additional
considerations beyond the States' proportion of eligible land. The
commenter urged NRCS to make only modest adjustments, if any, in the
allocations to take into account the discretionary additional
considerations. In the near term, any such modest adjustments should be
based on both a clear and convincing need and on the proven
effectiveness of the State in delivering the program.
NRCS Response
NRCS will explore other considerations for future sign-up periods.
Other Comments
NRCS received a comment that CSP is a premier working-lands
platform for rice producers with the many attendant waterfowl and other
wildlife benefits they provide to fulfill the CSP enhance and conserve
requirements. For this reason, it is essential that rice producing
States be allocated sufficient CSP acres that recognize their rice-
related conservation benefits and provide an opportunity for rice
producers' meaningful participation. In addition to the Farm Bill
mandating a primary State-acreage allocation method, it also calls for
consideration of other factors, which should be evaluated when CSP
rice-producing State allocations are determined.
One commenter urged NRCS to emphasize factors (2)(i) and (2)(ii)
from section 1470.4 of the rule (``the extent and magnitude of the
conservation needs associated with agricultural production in each
State,'' and ``the degree to which implementation of the program in the
State is, or will be, effective in helping producers address those
needs'').
One commenter recommended, in 1470.4(b), when a State does not use
acres reserved for socially disadvantaged farmers or ranchers those
acres be reallocated to other States with higher demand for the
program.
NRCS Response
The State acre allocations are based on a formula that evaluates
each State's proportion of eligible acres to the number of eligible
acres in all States along with consideration of the extent and
magnitude of the conservation needs associated with agriculture
production in each State. NRCS amends paragraph (a)(2)(i) to clarify
that this determination will use science-based resource factors that
consider regional and State-level priority ecosystem areas. This
ensures equitable acreage allocation. Additionally, NRCS amends
1470.4(b) to provide that State Conservationists allocate acres to
ranking pools, to the extent practicable, based on the same factors the
Chief uses in making State allocations. Additionally, allocated acres
that are not enrolled in any fiscal year by a date set by the Chief,
may be reallocated with associated funds for use in that fiscal year.
The text related to reserving acres for beginning farmers or
ranchers, and socially disadvantaged farmers or ranchers is located in
paragraph (c) and reallocating unused acres are found in paragraph (d).
NRCS amends the new paragraph (d) to read, ``In any fiscal year,
allocated acres that are not enrolled by a date determined by NRCS may
be reallocated with associated funds for use in that fiscal year under
CSP. As part of the reallocation process, NRCS will consider several
factors, including demand from applicants, national and regional
conservation priorities, and prior-year CSP performance in States.
Section 1470.5 Outreach Activities.
This section describes how NRCS will establish special program
outreach activities at the national, State, and local levels. Nine
comments were received related to outreach activities for CRP lands,
organic producers, and NIPF landowners. The comments are categorized in
alphabetical order based on topic.
Conservation Reserve Program Lands
Comments
Several comments were received related to the eligibility provision
for the CRP land. Six commenters recommended NRCS allow CRP
participants to apply for CSP in the last year of the CRP contract.
Additionally, the requirement that any farmable acres must have been
farmed in 4 of the last 6 years is troubling. This provision leaves any
land previously enrolled in CRP, but recently expired from the
contract, completely ineligible for the program. One commenter suggests
at the very least allow any acres classified as highly erodible to be
eligible for CSP.
NRCS Response
No changes are made to the rule in response to the comments. The
program's authorizing language states that land enrolled in CRP is not
eligible for enrollment in the program. There is an exception for land
that has not been farmed 4 of the last 6 years. The statute provides
that the requirement will not apply if the land has previously been
enrolled in CRP.
Comments
One commenter encouraged NRCS to include language in section 1470.5
clarifying that expiring CRP lands should be targeted by NRCS. The
commenter recommends that NRCS provide guidance on how producers will
be encouraged to protect conservation values on expiring CRP by
enrolling in CSP.
NRCS Response
NRCS recognizes the natural resource benefits the nation has
realized on CRP lands and is considering options for those producers
with expiring CRP lands. However, NRCS is addressing this issue in
policy rather than in the rule. Rather than targeting CRP lands
specifically, NRCS considers the importance of maintaining land in
conserving uses such as grassland and plans to spread this message
through outreach and public announcements.
[[Page 31625]]
Nonindustrial Private Forest Land
Comments
NRCS received comment that it should work with other Federal and
State agencies and non-governmental organizations that can assist them
with outreach to forest landowners. Additionally, NRCS should conduct
expanded outreach to this group of landowners since many NIPF
landowners have not traditionally participated in USDA cost-share
programs and are unfamiliar with the application process.
NRCS Response
NRCS agrees that many NIPF landowners have not traditionally
participated in USDA conservation programs. NRCS encouraged State
Conservationists to partner with other agencies and non-governmental
organizations to ensure NIPF landowners were aware of the program. Some
examples of efforts that States made to reach out to NIPF landowners
were partnering with Small Woodland Owners Association, USFS, State
Department of Forestry, and representatives from other local
organizations. Some States provided training and promotional materials
to each organization so they could provide accurate CSP information to
their respective clients. Eight percent of the acres enrolled during
the initial sign-up were NIPF.
Organic and Transitioning Farmers
Comments
NRCS received a few comments related to organic production.
Comments included encouraging participation by organic and
transitioning farmers; fully develop and implement, in close
coordination with the National Organic Program, the CSP ``organic
crosswalk;'' ensure outreach to organic and transitioning farmers by
providing materials that are farmer-friendly and that account for the
specific requirements of organic systems under the National Organic
Program rule and how those requirements overlap with CSP; and seek to
conduct outreach through avenues that organic and transitioning farmers
use and access, which often are different from the information avenues
that most conventional farmers use.
NRCS Response
No changes are made in the rule in response to the comments. NRCS
is encouraging participation of organic producers by conducting special
outreach efforts to this group. During the initial CSP sign-up period,
outreach efforts were conducted in 17 States targeting organic farming
organizations, groups, and individuals. Many States have representation
on the State Technical Committee from organic organizations offering
their views on how conservation programs are implemented within a
State. State Conservationists have been encouraged to outreach to
organic farmers, and NRCS will continue these efforts as we move
forward with the program into the future.
Other
Comments
One commenter recommended NRCS conduct outreach programs to help
make farmers and ranchers aware of the importance of providing habitat
for managed and native bees and technical resources and available
assistance.
NRCS Response
NRCS conducts outreach activities to a wide audience to promote the
program and the benefits of addressing resource concerns in a
comprehensive manner. CSP offers several opportunities to address
pollinator habitat through questions in the CMT and enhancements. NRCS
will consider additional outreach and publicity efforts to make
producers aware of the opportunities to address pollinator habitat
through CSP. No changes are made to the rule in response to this
comment.
Section 1470.6 Eligibility Requirements
Comments
Section 1470.6, ``Eligibility requirements,'' sets forth the
criteria for determining applicant and land eligibility. NRCS received
numerous comments on this section. One commenter expressed that a
participant's personal details and proprietary operational information
must be protected at all times by the Department.
NRCS Response
Information about applicants is generally not released to the
public because individual privacy rights must be protected. The Freedom
of Information Act (FOIA) and the Privacy Act, section 2004 of the Farm
Security and Rural Investment Act of 2002, and section 1619 of the 2008
Act permit the government to withhold certain information. Refer to GM-
120, Part 408, Subpart C, FOIA and Privacy Act, for NRCS policy
regarding FOIA and the Privacy Act. The following information about
conservation program contract applicants may not be released: Names,
Addresses, Telephone Numbers, Social Security or tax identification
numbers, and amount of Federal funds requested.
The 2008 Act does not impede the sharing of information between and
among USDA agencies. However, information may only be shared with
Federal agencies outside of USDA for specific purposes under a
cooperative program, but not for general regulatory or enforcement
purposes. Aggregate or statistical information about applications may
be described in news releases, Web sites, and other tools used to
inform the public.
When an applicant becomes a participant, additional information is
available for release. The following information about participants may
be released through a FOIA request: Names, limited address (State,
city, or county), and conservation program contact obligation amount.
Additional restrictions about the release of address information apply
to some corporate and nonprofit business types. For more information,
consult the NRCS General Manual GM-120, Part 408.
Comments
The other comments are discussed by the following categories:
Applicant eligibility, operator of record requirements, control of
land, land eligibility--general, land eligibility--agricultural
operation, land eligibility--NIPF, and ineligible land.
Applicant Eligibility
Comments
A number of respondents expressed concerns about overarching Farm
Bill eligibility requirements such as the treatment of landlords and
tenants, Adjusted Gross Income (AGI) provisions, and actively engaged
in farming determinations handled through the Farm Service Agency
(FSA). One commenter requested NRCS coordinate closely with FSA.
NRCS Response
NRCS is coordinating closely with FSA regarding FSA's rules for
legal farming arrangements. NRCS recognizes FSA responsibility in
maintaining farm records and intends on utilizing these records, to the
extent practicable, as a basis for program participation. However, NRCS
will ensure that producers who would have an interest in acreage being
offered receive fair treatment which NRCS deems to be equitable. NRCS
may refuse to enter into a contract when there is a disagreement among
joint applicants seeking enrollment as to an applicant's
[[Page 31626]]
eligibility to participate in the contract as a tenant.
Comments
NRCS received a comment that it is important when making AGI
determinations that the current Internal Revenue Service rules
governing income allocation apply. Accountants and other tax
professionals are aware of these rules and knowledgeable when using
them to make the necessary allocation amounts to spouses and other
members of an entity. The Farm Bill provides an extensive list of
income sources considered to be farm income for purposes of the farm
AGI calculation. One area that is not specifically addressed is the
categorization of wages earned from a farming corporation or other
entity. Many times, partners or members of an entity receive a salary
from the operation rather than or in addition to a distribution. NRCS
should state clearly that this income is considered farm income for AGI
purposes.
NRCS Response
The 2008 Act provides very specific AGI information applicable to
all current Farm Bill programs. AGI clarification applicable to all
Farm Bill programs is found in 7 CFR 1400.500.
Comments
NRCS received a comment urging the agency to factor into AGI
determinations the fact that the Internal Revenue Service arbitrarily
limits annual losses a producer can claim to $300,000 if the producer
receives Farm Bill benefits, which if left unaddressed, could
underestimate the extent of a producer's losses while exaggerating AGI,
unfairly resulting in program ineligibility.
One commenter expressed that FSA ``actively engaged in farming''
rules should apply. These rules include crop share landlords and
tenants as actively engaged, but reduce the ability of absentee
investors to benefit and reduce the opportunity to create ``paper''
farms whose only purpose is to enable the beneficiary to collect
payments in excess of the payment limit through well established
payment limit avoidance devices that will not be captured by direct
attribution. A reference to the actively engaged in farming rules
applying to CSP should be added between paragraphs (g) and (h) in
1470.24. In addition, the definition of ``producer'' in 1470.2 should
be modified to say ``actively engaged in agricultural production or
forest management'' instead of just ``engaged.''
NRCS Response
No changes are made to the rule in response to these comments. NRCS
is legally obligated to offer the program to everyone meeting
eligibility. To apply for the program, the applicant must be the
operator of the land in the FSA record system. An operator who is
accepted and subsequently enrolled in a contract may include additional
participants on their contract who may be landowners or others having
control of the land enrolled in the contract and are included in the
FSA record system. Such participants need to meet AGI requirements as
well as Highly Erodible Land provisions and Swampbuster provisions. All
participants included in a contract that receive funding will by law,
be limited to the payment limitations set forth in the statute and the
rule.
Comments
Two commenters requested NRCS establish reasonable procedures for
reporting all members of a legal entity.
NRCS Response
It is FSA's responsibility to maintain customer records, including
member information. FSA has forms available for entities to use to
provide their member information; therefore, it is not necessary for
NRCS to establish additional procedures. NRCS may obtain a copy of this
information if needed. No changes are made to the rule in response to
this comment.
Operator of Record in FSA Records
Comments
Nine comments were received on this topic. The commenters generally
expressed dissatisfaction with the requirement that the applicant must
be the operator of record in the FSA system. In their view, the
requirement unfairly precludes certain legitimate producers or
landowners from participating.
NRCS Response
The policy related to operators' results from a finding from the
2006 Office of the Inspector General (OIG) CSP audit that identified
NRCS failed to detect improper identification of producers'
agricultural operations. OIG recommended that NRCS complete ongoing
coordination with FSA to utilize their existing data to independently
verify applicant information for similar programs implemented in the
future. However, NRCS recognizes this is a significant concern and
amends paragraph 1470.6(a), Eligible applicant, to read as follows.
``To be an eligible applicant for CSP, a producer must be the
operator in the FSA farm records management system. Potential
applicants that are not in the FSA farm records management system must
establish records with FSA. Potential applicants whose records are not
current in the FSA farm records management system must update those
records with FSA prior to the close of the ranking period to be
considered eligible. NRCS may grant exceptions to the ``operator of
record'' requirement for producers, tenants, and owners in the FSA farm
records management system that can demonstrate to the satisfaction of
NRCS they will operate and have effective control of the land for the
term of the proposed contract.'' This change is not retroactive, and
therefore, will not apply to the 2009 applications or participants.
Paragraph 1470.6(a)(1) is deleted and subsequent paragraphs are
redesignated accordingly. The new paragraph (a)(1) is revised to remove
the requirement that the producers have ``documented control'' and to
add a requirement that they have ``effective control.''
Control of Land
Comments
NRCS received multiple comments on this requirement. Commenters
expressed dissatisfaction with the requirements that a producer must
show control of the land for 5 years. NRCS received a comment
recommending it work to the fullest extent allowed under the CSP
statute to include rental acres in the program. Not doing so would mean
that most modern commercial operations would be effectively excluded
from CSP and the conservation incentives the program provides. It could
be a significant administrative burden for both producers and NRCS
personnel to modify the CSP contracts annually to accommodate changes
in leased landowners. One commenter recommends that it be optional for
a producer to enter leased land into the CSP.
NRCS Response
NRCS considers it a sound business practice to enter into contracts
where the land will remain under contract for the full contract period.
However, NRCS does recognize the need for flexibility to address those
situations where operators have oral leases or other similar
arrangements. Therefore, NRCS will modify its policy to remove the
requirement for documented assurance
[[Page 31627]]
from the owner that the tenant will have control and will accept
operator self-certification of control of the land for the contract
period. Applicants who utilize the self-certification process will be
subject to an annual review and verification process to confirm they
maintain control throughout the contract period. In situations where
operators do not anticipate having control of the land for the required
period, such operators would not have effective control of that land
and such land would not be considered part of their agriculture
operation. NRCS does not expect applicants to project the unknown
(e.g., health, death, business failures, etc.); as long as applicants
believe they will have the necessary control at the time of enrollment
and for the required period of the contract, they are eligible.
Land Eligibility
Comments
Five respondents recommended that NRCS accept managed grazing land
as cropland so it qualifies for a higher payment, ranks higher, and can
support some enhancements not available in the pasture category.
Operators who use cropland as pasture should be rewarded, not penalized
by a lower CSP payment; one commenter felt the program should enable
those who harvest wind to participate by expressing if the respondent
grew crops to make biofuels they could participate; if they harvest
wind they cannot; and one commenter requested NRCS implement the
program in a size neutral manner. Producers of all sizes and
descriptions are involved in cotton production and should have equal
opportunities to access conservation programs.
NRCS Response
NRCS does not want to establish policy that may have an unintended
consequence of encouraging producers to convert pastureland to
cropland. Therefore, NRCS is establishing a ``pastured cropland''
program designation to provide a more accurate payment rate due to
higher forgone income costs associated with maintaining a grass-based
livestock production system on land suitable for cropland. The existing
activity payment rate for pastured cropland will be higher than the
pastureland rate. All technical assessments and determinations are
completed as pastureland. Since the details regarding payment rates are
not included in the regulation, no changes are made to the rule.
CSP does recognize wind power used to power agricultural operations
on the farm through the CMT and enhancements offered by the program.
However, land that is used solely for wind production does not meet the
CSP definition of agricultural land as no ``agricultural products or
livestock'' would be produced on the land.
No changes are made to the rule in response to these comments.
Comments
Two commenters requested NRCS clarify that the Conservation
Security Program contracts may be eligible for CSP.
NRCS Response
NRCS retains the requirement that land enrolled in the Conservation
Security Program is not eligible. After the Conservation Security
Program contract expires, the land becomes eligible.
Comments
One commenter requested clarification of the term ``other lands.''
The commenter requested NRCS identify what this term entails and what
are the standards for demonstrating appropriate level of conservation
on these lands that will determine eligibility and compliance. The rule
itself is somewhat concerning in that it specifies that these areas
must not have readily observable erosion or point sources of
contamination such as gullies, manure runoff, or pesticide runoff. It
is important to note that ``agriculture storm water runoff'' is not a
point source and is allowed by Federal law under the Clean Water Act.
The commenter encourages NRCS to revisit this element to make sure the
standard of conservation sought on these lands is not a hindrance to
farmer participation or conflicts with Federal law, particularly since
payments will not be administered for practices on these lands.
NRCS Response
NRCS recognizes the concerns with using the words ``point source''
and will strike that language from procedures for assessing ``Other
lands.'' ``Other lands'' must be free from readily observable erosion,
gullies, manure runoff, pesticide runoff, or other similar
environmental concerns for the applicant to be eligible for the
program.
Agricultural Operations
Comments
NRCS received a comment urging USDA to provide clear, detailed
guidance about how it would implement ``substantially separate''
provisions to enable prospective applicants to determine if they would
be able to participate on the business model their operation uses.
NRCS Response
The regulation identifies factors that will be used by applicants
to determine whether operations are ``substantially separate.'' Factors
include equipment, labor, management, and cultivation or production
practices. NRCS intends to clarify how these factors are used in
procedures and guidance for producers.
Comments
One commenter expressed that the goal in the final rule is to make
CSP simple and easy for CSP to be of real, concrete, and practical
assistance to farmers struggling to deal with their real and immediate
conservation and environment (needs); another expressed concern about
treatment of eligible acres ``agricultural operations'' and rented land
in the context of CSP contract requirements that are viewed to be
unnecessarily restrictive and limiting; NRCS also was questioned about
whether there is a statutory requirement that requires all of an
applicant's operation to be covered by a contract. Section 1238E of the
Food Security Act, as amended by the 2008 Act, says only that eligible
land ``shall include all acres of an agricultural operation of a
producer, whether or not contiguous, that are under the effective
control of the producer at the time the producer enters into a
stewardship contract'' (Sec. (b)(3)). While all such acres may be
``eligible,'' there is no requirement that the applicant enroll all
these eligible acres as the rule requires. If this language does not
require the entire operation to be enrolled, we encourage NRCS to
strike this requirement from the rule and instead adopt a more flexible
approach that is fully reflective of the program's objective to provide
comprehensive solutions working from a conservation systems' approach.
Another commenter recommends that NRCS require an operator to
enroll a sufficient quantity and type of acres from the producer's
operation to ensure that their operation's potential contribution to
the area's resource and priority resource concerns can be properly
addressed. This is not a fixed percentage of an operation, and it
cannot be established in a one-size-fits-all approach.
NRCS Response
NRCS retains the requirement for the agricultural operation from
section 1238E, i.e., eligible land will include all acres of an
agricultural operation whether or not contiguous, that are
[[Page 31628]]
under the effective control of the producer at the time they enter a
stewardship contract, and operated by the producer with equipment,
labor, management, and production or cultivation practices that are
substantially separate from other agricultural operations, as
determined by the Secretary. NRCS gives producers the opportunity to
enroll owned land and rented ground for which they have effective
control. NRCS amended paragraph 1470.6(b) to provide clarification that
a participant may submit an application(s) to enter into additional
contract(s) for newly acquired eligible land, which would than compete
with other applications in a subsequent ranking period.
Nonindustrial Private Forest Land
Comments
NRCS received comments both in favor of and opposed to the agency
policy of separating out NIPF in the enrollment process, so that forest
land will be ranked and enrolled separately.
One commenter encourages NRCS to develop a way to track NIPF within
their ProTracts system so that producers with both NIPF and
agricultural lands are not required to file two applications.
By special rule no more than 10 percent of acres enrolled
nationally in any fiscal year may be NIPF ownerships. This model
potentially provides a larger contract payment to the landowner, but by
the total enrollment calculation may overstate the benefits.
NRCS Response
NRCS determined it is necessary to maintain forest land
applications separate to be able to meet the legislative requirement of
enrolling no more than 10 percent of the annual acres enrolled
nationally in any fiscal year in NIPF. NRCS chooses to retain the
process established.
Section 1470.7 Enhancements and Conservation Practices
Comments
Forty-six comments were received on section 1470.7, ``Enhancements
and conservation practices.'' This section identifies that a
participant's decisions describing the additional enhancements and
conservation practices to be implemented under the CSP contract. The
list of comments reflects the large selection of potential
enhancements. The public provided input on managed grazing, pesticide
management, energy, innovative practices, wildlife, forest management,
and organic production.
NRCS Response
NRCS received numerous recommendations on innovative enhancements.
NRCS is open to suggestions for additional enhancements on all land
uses and welcomes innovative ideas for consideration. However, the
program constraints limited how the financial assistance funds could be
used. In order to achieve a national average rate of $18 per acre,
enhancement activities emphasize management-based actions rather than
structural practices. It is NRCS' intention that recommended changes
and improvements will be incorporated in future ranking periods. New
enchancement ideas will be evaluated and incorporated as time permits
for future ranking periods. No changes are made to the rule in response
to the comment.
Comments
One commenter recommends NRCS require cover crops and rotational
grazing, rather than rewarding uninterrupted commodity crops that rob
the soil.
NRCS Response
Program requirements to implement specific conservation activities
would eliminate some farmers from eligibility for CSP. Instead, CSP
recognizes there are many paths to conservation stewardship and asks
questions in the CMT and offers enhancements that cover this spectrum.
In addition, there are five enhancements available to producers that
encourage the use of cover crops to manage nitrogen, break-up soil
compaction, and improve bio-diversity. The resource-conserving crop
rotation is another way CSP promotes crop diversity that includes grass
and legume.
Comments
NRCS received criticism that the list of potential enhancements is
long and exhaustive, and it will benefit potential program participants
to know the ranking of each enhancement for both conservation
performance effectiveness and relative cost. The commenter assumes that
these rankings are, in turn, used in the CMT, and as such, the rankings
reflected in this document should be subject to review and modification
by the State Technical Committee to fully reflect that State's needs
and priorities.
NRCS Response
The conservation values for each enhancement are posted on the NRCS
Web site. NRCS welcomes input and thoughts on the relative value of
each enhancement, but NRCS retains the right to make final decisions on
the technical and resulting environmental impact of each enhancement.
NRCS will continue to improve the development of information related to
the CMT. NRCS recognizes the success of the program is dependent on a
thorough understanding of resource needs and producer commitments,
prior to entering a contract. Further, NRCS is looking at options to
adjust the choices available by ranking pool, State, or region.
Comments
One commenter urged NRCS to consider offering enhancement practices
for forest land that are innovative or not offered by other USDA
programs, and to strongly consider potential environmental benefit when
offering practices and ranking applications. The commenter recommended
specific enhancements, some of which are already on the CSP enhancement
list.
NRCS Response
The NIPF land enhancements are currently under review with changes
in number of enhancements and scope to be completed before the next
ranking period. NRCS will evaluate the enhancements recommended and
will make its determinations public when changes, if applicable, are
complete. The recommendations do not require a change to the rule.
Comments
NRCS received a recommendation that section 1470.7 be rewritten and
re-titled to include both new enhancements and conservation practices
to be implemented under a contract, as well as existing enhancements
and conservation practices to be actively managed and maintained under
a contract.
NRCS Response
NRCS chooses to retain the current information in section 1470.7 as
this section is intended to address additional conservation activities
to be adopted through CSP. Section 1470.23 deals with maintenance and
management of existing activities.
Comments
Two commenters expressed that enhancements should reflect that
commitment to flexibility and continuous improvement should allow for
reasonable adaptation and modification during the life of the contract.
Two commenters requested new enhancements be added to the toolbox of
offerings as new conservation technologies are developed.
[[Page 31629]]
One commenter recommended allowing landowners 3 years to adopt
forest enhancements, including forest stewardship plans which should be
encouraged.
NRCS Response
The program has mechanisms in place to accommodate changes in
operations during the life of the contract. The program allows change
to the schedule or installed enhancements by allowing enhancements to
be substituted as long as the conservation performance determined by
NRCS is equal or better than the conservation performance offered at
enrollment. In addition, a participant will not be considered in
violation of the contract for failure to comply with the contract due
to circumstances beyond the control of the participant.
CSP rules require that all enhancements be adopted by the third
year of the contract. No changes are made to the rule in response to
this comment.
Comments
One commenter recommended a thorough review of all CSP enhancements
before the next ranking period and appropriate steps taken to improve
benefits to fish, wildlife, and their habitats.
One commenter was opposed to implementing new practices through
CSP. The commenter expressed that if farmers are interested in adopting
new practices, they should be encouraged to apply for funding for the
new adoption under EQIP instead.
NRCS Response
The program's statutory language provides that the term
conservation activities mean conservation system, practices, or
management measures that are designed to address a resource concern.
Comments
One commenter identified an interest in farmers that transition to
a lower carbon footprint of production, including increasing soil
carbon using managed intensive grazing systems, reduced tillage, and
reduced pesticide use while another proposed a new category
encompassing many of the CSP enhancements to help some of the
endangered species, pollinators, and wildlife that are being pushed out
by increasing housing developments. This should include inclusion and
priority of biodiversity enhancing and organic farming practices.
NRCS Response
NRCS recognizes the merit of these conservation measures, and they
are currently reflected in the CMT questions and enhancements offered
through the program.
Innovative Enhancements
Comments
NRCS received multiple suggestions of practices and activities to
add to the list of enhancements.
NRCS Response
NRCS conducted a thorough review of all CSP enhancements for all
land uses, as well as evaluated the recommendations from the public. As
a result, NRCS updated its enhancement list and adopted a new concept
for the second ranking period related to the selection and
implementation of enhancements. Certain enhancements will be offered as
``bundles'' while others will be offered individually. The bundling
concept enables participants and the nation to realize conservation
benefits from the synergy that results when activities are implemented
as a system. For example, NRCS established a Sustainable Ag Bundle that
includes enhancements for locally grown and marketed farm products,
water quality, soil quality and plants, and beneficial insects.
The environmental benefits of each bundle will be reflected in the
score and the resulting payment level. NRCS amended the rule in
1470.7(c) to make known the ability to incorporate bundled enhancements
in the stewardship plan.
Comments
Another commenter requested NRCS provide clarity on the development
and regular review of incentives for Socially Disadvantaged Farmers or
Ranchers, Beginning Farmers or Ranchers, and Limited Resource Farmers
or Ranchers, and Indian Tribes.
NRCS Response
The CSP does not provide incentive payments for historically
underserved individuals. However, NRCS policy requires State
Conservationists to address access to program enrollment for Socially
Disadvantaged Farmers or Ranchers and Beginning Farmers or Ranchers
through the establishment of special ranking pools. In addition, Indian
tribes are exempt to payment limitation per legislation as stated in
section 1238G(g) of the Statute.
Comments
NRCS should view the development of new technologies and management
strategies in an entrepreneurial manner that fosters the addition of
beneficial new activities as they are developed. New enhancements
should be added to CSP's toolbox of offerings as new conservation
technologies are developed in order to accelerate the adoption of
conservation technologies with positive environmental benefits that
will address societal needs.
One commenter noted that continued funding of large scale farms and
conventional practices seems like others are continuing to get
resources while innovators get nothing. Small scale farms are
increasing across the country and at the same time, more CSA orientated
marketing continues to spiral upwards as well.
NRCS Response
NRCS recognizes the value of small scale farms as well as large
farms. As a result, the scoring and ranking system used for CSP is size
neutral. No change is made to the rule in response to this comment.
Conservation Practices and Resource-Conserving Crop Rotation
Comments
Two commenters recommended that cover crops that best hold the soil
in place whether legumes or perennial grasses with the least disruption
causing erosion must be rewarded.
NRCS Response
Cover crops are given performance points in the CMT. There are also
five CSP enhancements available that promote the adoption of cover
crops in various ways. No changes are made to the rule in response to
this comment.
Comments
Commenters supported the concept that resource-conserving crop
rotations and managed rotational grazing should be rewarded through
CSP.
NRCS Response
NRCS agrees and these activities are recognized in scoring and
enhancements through CSP.
Comments
One commenter expressed that CSP is essential to the development of
a better, more sustainable agricultural sector in this country, and
therefore, it is necessary that the program provide support on a wide
range of important practices like crop rotation.
Forty-nine commenters recommended that resource-conserving crop
rotations
[[Page 31630]]
and management-intensive rotational grazing should receive strong
support or high ranking and payment points. Cropping systems built
around resource-conserving cropping and livestock systems based on
rotational grazing are superior conservation approaches with multiple
environmental benefits. They should be fully rewarded whether they are
an ongoing conservation system or a newly adopted one.
NRCS Response
Applicants who choose to implement a resource-conserving crop
rotation are recognized because they receive a separate payment for
this activity above and beyond other payments they may qualify for
under the program. NRCS recognizes the conservation value of crop
rotations and rotational grazing. Both are scored highly in the CMT,
and enhancements are offered for both of these activities. No changes
are made to the regulation in response to these comments.
Comments
Another commenter expressed that it is also important that the
funding amounts recognize the critical role that organic crop and
livestock systems, resource-conserving crop rotations, and management-
intensive rotational grazing play in strong and productive stewardship.
NRCS Response
CSP uses the CMT in evaluating the environmental impact that a
management system provides. Those systems that provide the highest
benefits receive the most conservation performance points resulting in
higher ranking and increase payments. No changes are made to the rule
in response to the comment.
Comments
A number of comments show support for small farmers like the one
that expressed the concern that small family farmers raising a
diversity of crops and animals, should receive high ranking and payment
points based on resource-conserving crop rotations and management-
intensive rotational grazing.
NRCS Response
Applicants in this category that are addressing natural resource
concerns will score very well in the CMT and will have the potential
for high stewardship levels. Recognizing that CSP may not offer
financial resources to smaller operators that would encourage
participation, NRCS amended the regulation in paragraph 1470.24 to add
authority for the Chief to offer a minimum contract payment amount.
Comments
Farmers coming into newly adopted resource-conserving crop
rotations and management-intensive rotational grazing (in addition to
those who presently implement those practices) need to be able to sign-
up for CSP.
NRCS Response
CSP scoring, ranking, and payments are based on both existing
conservation activities and additional conservation activities that the
applicant chooses to implement. This process allows for farmers who are
at different levels of conservation to participate. NRCS uses an
environmental focus and not a commodity-based focus when implementing
CSP. No changes are made to the rule in response to the comment.
Comments
One commenter expressed that in reviewing the interim final rule
and the materials posted on the NRCS Web site in reference to the rule,
the resource-conserving crop rotation and its specific special payment
is clearly a priority for NRCS. However, exact implementation of this
provision still appears uncertain. As NRCS moves forward with this
provision, the agency should strive to attain the objective of greater
soil conservation and the building of carbon in the soil rather than a
prescription that can only be met with the addition of a perennial crop
or forage crop to the rotation.
NRCS Response
The resource-conserving crop rotation job sheet, describes the
benefits of a resource-conserving crop rotation that includes reduced
wind and water erosion, increased soil organic matter, improved soil
fertility and tilth, interrupted pest cycles, reduced depletion of soil
moisture or reduced need for irrigation in applicable areas, and
provided protection and habitat for pollinators. Each State developed a
list of plants and crops that met the criteria of a resource-conserving
crop. No changes are made to the rule in response to the comment.
Comments
One commenter expressed that conservation methods in crop rotations
are vital for a sound, conservation-based farm. Adequate rewards for
resource-conserving methods such as green manure plantings and forage,
is important to ensure such practices are implemented and maintained.
Well managed rotational grazing systems for livestock are another
superior conservation method with value-added gain to the environment.
NRCS Response
NRCS agrees with these comments as reflected in the questions in
the CMT and the CSP enhancements. No changes are made to the rule.
Comments
One commenter expected real change with the implementation of the
CSP. The commenter expressed that the new CSP actually rewards farmers
who are early adopters and using long-term rotations or grass-based
livestock systems.
NRCS Response
Questions in the CMT are designed to analyze an existing crop
production system and award conservation performance points for those
systems that provide the greatest environmental benefit. Systems that
include greater crop diversity reduce tillage and high levels of
nutrient and pest management receive more conservation performance
points, increasing chances to be selected for funding. No changes are
made to the rule in response to the comment.
Comments
One commenter was critical of the ranking process in situations
where a producer has to change a rotation that is not on the list, and
then the producer would have to go through some ranking changes each
time.
NRCS Response
Participants can modify stewardship plans to address unforeseen
contingencies, as long as they select enhancement activities with the
same or greater environmental benefits. Further, NRCS does not consider
a participant in violation of the contract for failure to comply with
the contract due to circumstances beyond the control of the
participant, including disaster or related conditions, as determined by
the State Conservationist.
Comments
One commenter recommended that NRCS seek opportunities to increase
bee forage when implementing other conservation practices, such as
cover crops and resource-conserving crop rotations.
NRCS Response
NRCS feels that it has adequately addressed the concerns in the CMT
and with the activities offered through the program. NRCS will conduct
continuous
[[Page 31631]]
reviews to incorporate innovative ideas for future ranking periods. No
changes are made to the rule in response to the comment.
Comments
One commenter requested clarification on whether or not orchard and
vineyard crops are eligible for the resource-conserving crop rotation.
Wine grape growers typically use a resource-conserving crop in their
vineyards which meets the first definition, a perennial crop for soil
fertility. Will vineyards be eligible for the supplemental payment?
NRCS Response
Resource-conserving crop rotations are not applicable for orchards
or vineyards. A resource-conserving crop rotation is only applicable
where there is an annually planted crop in the rotation.
On-Farm Research and Demonstration
Comments
NRCS received one comment on this provision. The commenter
recommended the addition of a new paragraph (3) in 1470.2 to stipulate
that NRCS will make available to eligible applicants design protocols
and participation procedures for participation in CSP on-farm research
and demonstration projects. In addition, the commenter recommended that
either (a) current point values for on-farm research and demonstration
be enhanced, or (b) that on-farm research and demonstration be taken
out of the point system for payment purposes and compensated in a more
traditional manner.
NRCS Response
NRCS amends section 1470.2(f)(1) to read as follows:
(f) The State Conservationist will:
(1) Obtain advice from the State Technical Committee and local
working groups on the development of State-level technical, outreach,
and program issues, including the identification of priority resource
concerns for a State, or the specific geographic areas within a State,
and design protocols and participation procedures for participation in
on-farm research and demonstration and pilot projects.
States are working with their respective research institution in
educating them on the use of on-farm research and demonstration
projects to increase the list of available projects for the next
ranking period.
Section 1470.8 Technical Assistance
Comments
Section 1470.8, Technical assistance, explains that NRCS or other
technical service providers (TSP) could provide the technical
consultation for installing conservation activities under CSP.
Two commenters recommended that more CSP money to be available for
technical assistance through TSPs or cooperative agreements with
entities such as State wildlife agencies in order to meet the
anticipated program demand.
NRCS Response
States have an option to enter into cooperative agreements with
TSPs or other agencies to assist in delivering the program. However, it
is important to mention that the program constraints of managing the
program to achieve a national average of $18 per acre for financial
assistance and technical assistance will limit program servicing
options.
Technical Assistance on Forest Land
Comments
A number of comments were received regarding technical assistance
on forest land. Commenters expressed support for CSP with concerns on
how the expertise and technical assistance will be delivered at the
field level to NIPF; technical assistance for many NRCS forest projects
is provided by agreement with the State Forestry Department, and in
some cases, technical expertise is very limited; and respondents
recommended that NRCS utilize the extensive network of forestry
expertise through the Forest Stewardship Program, which includes State
forestry agencies, consulting foresters, and other partners working to
deliver technical assistance to NIPF landowners.
NRCS Response
NRCS field office staffs have diverse technical backgrounds and in
some cases have forestry and agroforestry expertise, but in those
situations where they do not, they will seek professional forestry
assistance. NRCS has staff foresters in many States that provide
technical guidance and training to field offices and can assist field
offices with planning and application questions. In States without
staff foresters, the field offices will assist the forest owner in
seeking assistance from either State agency foresters, forestry TSPs,
or other private consulting foresters in the local area who are
providing forestry planning and application assistance such as forest
stewardship planning.
Pollinators
Comments
One commenter recommended that NRCS further this objective by (1)
designating a liaison at NRCS charged with working with beekeeping
industry interests, and (2) establishing and convening a working group
of beekeepers, qualified research and extension specialists, and
interested agricultural producers to help conduct the necessary review
and revisions.
Another commenter expressed that USDA should realize the full
potential conservation assistance and incentive programs to help
farmers and ranchers establish and maintain habitat for managed and
native bees, and provide training to NRCS and other technical
assistance providers to make them aware of the new Farm Bill
authorities and the importance of habitat for managed and native bees
and how programs can be used to assist farmers and ranchers.
NRCS Response
NRCS has a Pollinator Initiative through which it is pursuing
increased attention to pollinators from a variety of approaches. A few
of these approaches include the following: Establishment of an NRCS
Liaison with beekeepers and with the United States beekeeping industry
to ensure that the needs of beekeepers and honey bees are appropriately
addressed in NRCS pursuits; revision of NRCS Conservation Practice
Standards to encourage establishment of pollinator habitat and
discourage management practices harmful to pollinators; implementation
of the recently-developed NRCS Plant Materials Centers pollinator
action plan which includes the field-testing of seed mixes for
pollinators from an eco-region-specific perspective and crop-specific
recommendations of plant materials that will provide preferred and
extended pollinator forage and refugia for beneficial insects helpful
in pest management; inclusion of a large number of opportunities for
matching funds to create and enhance pollinator habitat through a
variety of financial assistance and easement conservation programs;
development of Web based training for NRCS staffs and for our partners
and customers focused upon pollinators and their habitat requirements;
and implementation of the NRCS pollinator communications plan for
awareness-building concerning the critical roles of pollinators and
what individuals can do to help us sustain pollinator habitat and the
environmental services they provide.
[[Page 31632]]
NRCS takes seriously its responsibilities to ensure its field
office staffs have adequate training to work with organic farmers.
Individual States have conducted numerous training sessions on
conservation planning with organic producers. A national teleconference
on organic certification has been conducted, and plans are in place to
work with several private organic groups to provide training to NRCS
State specialists on organic farming systems. No changes are made to
the rule in response to this comment.
Comments
One commenter questioned why NRCS included a definition of TSP. The
commenter did not see where the term is used or referenced in the rule.
The commenter expressed that the rule leads one to conclude that NRCS
must provide all technical assistance relative to the CSP.
NRCS Response
Section 1470.8 states that NRCS may provide technical assistance to
an eligible applicant or participant either directly or through a TSP
as set forth in 7 CFR part 652.
Subpart B--Contracts and Payments
Section 1470.20 Application for Contracts and Selecting Offers From
Applicants
Comments
Section 1470.20, ``Application for contracts and selecting offers
from applicants,'' identifies procedures associated with application
acceptance, contract application requirements, and the application
evaluation process. NRCS received 20 comments on the application
process. Many of the commenters expressed frustration related to the
amount of paperwork necessary to participate in CSP.
Application Process
Seven commenters expressed that there is too much paperwork or the
program is too complex; other comments included that NRCS needs to
control costs and if an applicant is rejected from program enrollment,
the basis for the rejection needs to be explained to the applicant.
NRCS received comments that information requirements should be fair,
reasonable, and limited to data that is necessary, relevant, and
related directly to determining an applicant's potential CSP
participation. An applicant's personal details and proprietary
operational information must be protected at all times by the
Department; respondents urged NRCS to avoid onerous and invasive CSP
documentation requirements and to be fair and reasonable. One commenter
acknowledged that good recordingkeeping is integral to managing a
successful farming operation; however, due to the newness of this
program, some producers may not have records for all of the activities
conducted that would aid them in their application for CSP. The
commenter has concerns about how farmers will be treated in situations
where they have recently acquired farm ground where previous records
would not be available to the new operator, which could limit their
eligible acres.
NRCS Response
No changes are made to the rule in response to the comments.
All applicants are provided written notification of all
determinations related to their application.
NRCS designed the CSP to collect as little information from the
applicants as feasible. It is always difficult to balance the
information necessary for quality assurance and minimize burden on
customers. NRCS feels strongly that proper documentation is required to
avoid improper use of program funds. NRCS does not collect records to
be kept in NRCS field offices. Records are used to verify that the
information provided by the applicant is accurate when conducting the
onsite field verification and State quality assurance process.
Acreage eligibility is not determined by the presence or absence of
records; however, it may impact the applicant's ranking score. The
applicants are required to offer all acres on their operation that are
under effective control at the time of entry into a conservation
stewardship contract. To participate in CSP, applicants need to be able
to provide some form of verification for those activities that they are
credited in the CMT. There are many ways that information can be
verified during the onsite field verification such as equipment, crop
residues, visible signs of erosions, existing practices on the ground,
photos, receipts, existing conservation plans, aerial photos, etc. It
is the applicant's responsibility to provide accurate information of
the existing system that they will be compensated through program
payments.
NRCS will evaluate ways to minimize burdens on producers while
following policies and procedures to ensure that NRCS is accountable
for the use of program funds. It is critical that participants maintain
and supply information to verify eligibility. NRCS has the proper
supporting contract documentation to ensure fair and consistent
determinations are made.
Comments
Another area of interest related to the availability of
information. Four commenters expressed that applicants should have
access to enhancement points during the application process. For
farmers to make good decisions, farmers should have access to the
number of points each enhancement is assigned to make the best decision
for their operation and for the overall environmental benefit of their
contract. Three commenters expressed that the list of potential
enhancements is long and exhaustive, and it will benefit potential
program participants to know the ranking of each enhancement for both
conservation performance effectiveness and relative cost. We assume
that these rankings are in turn used in the CMT and, as such, the
rankings reflected in this document should be subject to review and
modification by the State Technical Committee to fully reflect that
State's needs and priorities.
NRCS Response
NRCS has made available to the public the conservation performance
effectiveness values for all activities offered through the program as
well as for all the inventory questions. In addition, NRCS developed
two detailed documents explaining how the points are used in the tool.
This information is located at http://www.nrcs.usda.gov/programs/new_csp/csp.html.
No changes are made to the rule in response to these comments.
Conservation Performance Ranking Score
Comments
One commenter indicated that what is unclear is how the activity
list relates specifically to the ranking process used in CSP contract
approvals, if at all, and how this list relates to the CMT. NRCS should
clarify how this list relates in this regard.
NRCS Response
The CMT is utilized to evaluate CSP applications using a point
based system for environmental benefits. The CMT evaluates existing and
proposed new activities to calculate conservation performance points
that will be used for ranking and payment purposes. No changes are made
to the rule in response to the comment.
Comments
One commenter encouraged NRCS to allow one application for
producers
[[Page 31633]]
with agricultural lands that also contain NIPF. Another commented that
the contract application requirements and ranking pool protocols for
NIPF are not specified.
NRCS Response
NRCS deemed necessary the separation between NIPF from agricultural
land applications to be able to meet the legislative requirement of not
more than 10 percent of the annual acres enrolled nationally in any
fiscal year may be NIP. However, NIPF applicants follow the same
application requirements and ranking protocols that agricultural land
applications follow. No changes are made to the rule in response to the
comment.
Ranking Process
Comments
NRCS received nine comments related to the ranking process. The
majority of the comments pertained to implementing CSP in a size
neutral manner. The commenters encouraged NRCS to resist efforts that
would place unnecessary size and income restrictions on CSP
participation, especially if those restrictions go beyond the
provisions Congress specifically included in the CSP authorization. CSP
is a program that must be designed in a way that allows participants to
be ranked and evaluated on the environmental merit of their on-farm
activities, regardless of the overall size of their operation. One
commenter expressed that CSP puts more emphasis on change. NRCS needs
to be careful about what kind of change is being directly or indirectly
promoted with tax-payer money. In the two sign-ups for the old CSP, the
highest ranking applications were often continuous no-till row crop
producers. With the emphasis on change, those applicants who are
changing to no-till will rank high.
NRCS Response
The CSP is designed to allow participants to be ranked and
evaluated on the environmental merit of their on-farm activities
regardless of the overall size of their operation. The CMT evaluates
existing and proposed new activities to calculate conservation
performance points that will be used for ranking and payment purposes.
The CMT is size neutral ensuring that all operations, despite the size
of each operation, have the same potential to accrue a similar number
of points.
NRCS is following the program's statute by crediting producers for
the conservation performance from the existing and proposed system. In
addition, NRCS is following the ranking factors stated in the statute.
Three out of the four ranking criteria are related to new conservation
activities. However, a review of the first sign-up data is being
conducted, and any needed adjustments will be made before the next
ranking period.
Comments
Two commenters responded with concerns related to wildlife issues;
one commenter expressed concern if cost is figured into the ranking
criteria, that wildlife and forest health enhancements will be
negatively weighted because of the installation cost, low CSP payment,
and no cost-share opportunities available for the producer.
NRCS Response
Cost is not a ranking factor unless there is a tie in ranking
scores between two or more applications. When there is a tie, the
application that represents the least cost to the program will be given
priority. The CSP does not provide cost-share payments but rather
compensates producers for the conservation performance.
Comments
One commenter supports a ranking scheme with no weighting for the
adoption of new enhancements by the producer.
NRCS Response
NRCS is currently implementing the ranking factors without
preferential treatment to any one factor. No changes are made to the
regulation in response to this comment.
Comments
One commenter recommended NRCS award points for selecting
conservation practices that address State, regional, or national
resource concerns such as Gulf of Mexico hypoxia, Northern Bobwhite
Conservation, and grassland bird initiatives.
NRCS Response
Conservation practices are used in CSP for the purpose of
encouraging producers to meet additional stewardship thresholds. NRCS
is evaluating options and methodologies to allow for State and regional
adaptation of the CMT at some future point.
Conservation Measurement Tool
Comments
NRCS received 19 comments on the CMT. Most of the comments
requested additional conservation considerations in the CMT. NRCS
received both positive and negative comments related to CMT and agency
implementation. For example, one commenter expressed the CMT is an
attempt to provide a nationwide ``level playing field'' in ranking
applicants and determining funding status across a large number of
resource conservation areas. For this, the NRCS deserves some
commendation. Unfortunately, the draft tools available for review thus
far do not give clear indications of how some of the ranking decisions
were made, nor how points are applied to producers' activities. Another
commented that estimation of a true baseline of environmental
conditions before and after CSP implementation is not possible.
NRCS Response
NRCS appreciates and understands the positive and negative comments
on CMT. The first implementation of CMT was a learning process. Changes
are already planned for CMT based on experiences at the field level. As
field personnel become more familiar with the use of CMT,
inconsistencies in its implementation will be minimized. In addition,
NRCS will conduct additional training for field personnel on CMT to
ensure consistent application and interpretation across the country.
NRCS entered into an agreement with the University of Illinois to
conduct a scientific validation to assess its performance in evaluating
environmental benefits.
Comments
One commenter expressed that the CMT considers the relative
physical effects of existing and proposed conservation activities to
estimate improvements in conservation performance. It does not measure
true environmental benefits, e.g., tons of carbon sequestered or tons
of soil saved.
NRCS Response
NRCS agrees with this commenter. The CMT was developed for the CSP
as a means of providing an ordinal ranking of applicants based upon the
level of conservation stewardship on the applicant's operation. The CMT
does this by asking a series of questions about the outcomes of
agricultural and ranching practices in terms that a typical landowner
should be able to answer. In other words, it provides a means of saying
that the environmental outcome on applicant A's farm as a result of the
implementation of farming and conservation activities is better than
applicant B's. However, NRCS will explore potential future additions
for quantitative capability to the tool. For
[[Page 31634]]
the CMT to measure benefits will require incorporating other modules
that can measure change such as Agricultural Policy Environmental
Extender, Voluntary Reporting of Greenhouse Gases-Carbon Management
Evaluation Tool, Nitrogen Loss and Environmental Assessment Package,
etc.
Comments
Another commenter expressed that the CMT does not adequately
encourage intensive tillage management for residue management or soil
tilth.
NRCS Response
CMT seeks only to judge the results of conservation actions (or
lack thereof). The encouragement comes as applicants see what actions
they need to take in order to rank highly or increase their level of
payment. CMT does in fact reward applicants through increased score
that practice tillage techniques that maintain high residue levels and
limit soil disturbance. In addition, by choosing enhancements that
increase residue and otherwise improve soil quality, applicants can
further increase ranking and payment levels.
Comments
One commenter expressed understanding that the CMT has been
developed to determine if an applicant meets the basic stewardship
threshold for entry into the program. The CMT should also be capable of
assisting further in the ranking process by calculating and accounting
for the practices of those farmers that have achieved a much higher
level of conservation, above and beyond the entry level threshold. It
must be remembered that many of the nation's best land stewards adopted
and implemented these conservation practices with their own money
because it was the ``right'' thing to do. In time, CSP will have the
majority of the farms enrolled, but the poor land stewards must be
aware of the successes of the best land stewards. The new CSP should
continue to inspire farmers to be ranked among the best land stewards
in the country.
NRCS Response
The CMT scores the exceptional steward much higher than the
applicant that just barely meets eligibility. NRCS acknowledges that
the number of enhancements available and the environmental points
granted to a ``barely eligible'' producer could result in an
application to be ranked higher than for an exceptional steward. NRCS
will be reviewing the stewardship eligibility levels for each resource
concern to ensure that good and poor stewards are properly indentified.
This could ultimately have some effect on who is eligible for the
program and better identify the good steward.
Comments
One commenter recommended the CMT needs to better recognize and
score certain practices. For example, terracing is a conservation
practice that was advocated for decades by the Soil Conservation
Service and is still part of the FOTG. Terracing is a vital component
in controlling water erosion, especially where residue production is
low. No-till or cover crops are not always an acceptable substitute for
terraces, and CMT scoring must recognize that fact. Producers who have
installed and farmed with terraces have incurred significant costs in
additional time, machinery, and labor requirements. Ignoring both the
benefits and producer costs, the CMT recognizes terracing with at most
only 45 points (questions 13 and 14) and specifically only 16 points
(question 14).
NRCS Response
While NRCS recognizes the significant contribution that some
applicants have made to improve the farming landscape by installing
terrace systems, CMT is designed to judge the conservation outcome of
activities rather than the capital and labor input to install the
practices. Farmers make choices based on the land they farm, the crops
they choose to grow, and other site-specific factors. In most cases,
there are multiple paths to achieve a good conservation outcome. The
CMT does not try to define the path, rather it tries to judge the
result of the choices the farmer makes. The farmer is free to make
these choices based on their operational goals.
Comments
One commenter opined that the CMT is particularly flawed in being
heavily weighted towards practices that are impractical for some
regions. Although it is recognized that the CSP is outcome based, it
will not further national conservation efforts to exclude some regions.
The CMT needs to be expanded with questions and points that match a
reasonable conservation outcome for a given region. It also needs a
mechanism to omit questions inappropriate for a particular region.
NRCS Response
NRCS will take this concern under advisement and look for
opportunities for States or regions to customize the CMT within the
constraints of a national program.
Comments
One commenter questioned in what manner does the CMT account for
the costs (or lack thereof) of given practices/enhancements? Question
11 provides up to 64 points for the use of a no-till system. However,
in many instances no-till systems are actually adopted for cost
savings. This is in conflict with the language in section 1470.24 and
with World Trade Organization requirements. Given these payment
requirements, how do practices/enhancements such as no-till (which is
potentially income enhancing) warrant high CMT points when significant
conservation practices such as terracing (which clearly has high costs)
are assigned much lower point values?
NRCS Response
NRCS developed CMT to determine the environmental benefits points
using conservation physical effects and does not take into account
costs of activities. The payment process takes into account costs
incurred, income foregone, and to the extent practical, environmental
benefits.
Comments
One commenter expressed that the CMT asks no questions related to
strategies for the management of herbicide resistance in weeds. With
reduced till/no-till systems relying on the availability of effective
herbicides (especially glyphosate in which resistance is an increasing
problem) this topic must be addressed.
NRCS Response
The CMT includes a section on pest management with the highest
scoring being the use of an integrated pest management plan (IPM). The
IPM can include a host of activities that range from the use of
herbicides to avoidance techniques that rely on management strategies.
This plan provides sufficient options to address herbicide resistant
weeds and reward applicants that choose environmentally sound options
without CMT prescribing the necessary treatment.
Comments
One commenter responded that other than referencing residue cover
at planting, the CMT asks no major questions about management for the
control of wind erosion. This is an example of an issue where regional
practices/enhancements must be more fully addressed by the CMT. This
commenter also expressed that despite
[[Page 31635]]
the otherwise heavy emphasis on plant diversity and cover crops, the
CMT does not recognize the identical role that facilitating postharvest
volunteer plant growth provides in wheat-fallow rotations.
NRCS Response
NRCS will take the comments under advisement to ensure that
additional clarification is included in the CMT.
Comments
One commenter recommended that NRCS refine the CMT to allow for the
creation of more precise resource concern categories within the land
use category of forest land. This would allow States to set priorities
for conservation on forest land in the same manner that they do for
other land use types when selecting resource concerns and priority
resource concerns for cropland, rangeland, or pasture.
NRCS Response
At this time NRCS does not anticipate changing the micro resource
concerns that are considered by CSP. Cropland, pastureland, rangeland,
and forest land are evaluated across the same 27 micro resource
concerns.
Ranking--Environmental Benefits
Comments
NRCS received 102 comments on the ranking for environmental
benefits. The majority of the comments pertained to organic farming and
livestock systems and ranking applications based on environmental
outcomes. NRCS received a few comments in support of small farms. The
comments are summarized as follows:
Organic Production
NRCS received 43 comments related to organic production. The
majority of these commenters expressed that organic crop and livestock
systems should get extra consideration because of their environmental
benefits. One commenter requested NRCS make the rules flexible enough
to fit the various needs of organic farmers, since their overall system
is beneficial but does not always fit the narrow guidelines for
conventional farming. A number of commenters expressed that organic and
those transitioning into organic should be treated similarly. Ranking
and payment point values should be roughly equivalent for ongoing
organic management and new conversions or transition to organic.
Another commenter expressed that the points given to organic farmers
are quite fair, and it is apparent that many organic farming practices
are sustainable. Those practices may be adopted, at least in a modified
form, by non-organic farms as a way to become more sustainable and
protective of the environments.
Not all the commenters supported giving organic and livestock
producers special consideration. One commenter expressed that organic
and livestock practices should not be given higher ranking or points
because it is organic. The end result is what matters; if conventional
agriculture or organic agriculture accomplishes the same result, the
reward should be the same. Another commenter expressed that organic
farming is not sustainable, and the added tillage to control weeds only
increases soil erosion. The use of manure encourages phosphorus run
off, and there is not scientific proof that their producer is any
better for humans than that produced with no-till.
NRCS Response
The CMT evaluates the impacts of organic systems in the same manner
as for non-organic systems. All producers are required to meet the same
stewardship threshold for each of the resource concerns. The CMT
evaluates the environmental benefits provided by an operation
regardless of operation size, land use, or production system.
Environmental Outcomes
Comments
NRCS received 36 comments recommending that CSP applications be
ranked and paid based on environmental outcomes. Examples of specific
comments include: Conservation strategies that yield the largest
environmental performance and provide multiple benefits should receive
priority ranking; it would be great if subsidy payments would shift
towards CSP; effective application ranking that prioritizes enrollment
of producers promising to do the most to address the important resource
concerns in a particular area will be critical to maximizing the
environmental benefits CSP can deliver; and reward good outcomes such
as enhanced wildlife habitat, better watershed protection, and higher
regard for air quality. These outcomes should be rewarded whether the
conservation practice was adopted this year or in the past so that
farmers with good practices are not punished for starting conservation
early.
NRCS Response
The CMT will credit producers with higher points if their existing
and proposed system is addressing the priority resource concerns
identified by the State for the geographic area they are competing in.
In addition, existing and proposed activities' performance are
calculated by resource concern for each land use ensuring the producers
are rewarded for multiple benefits they are producing.
Small Farms/Farm Size
Comments
Two commenters urged NRCS to encourage farms of all sizes to
practice conservation methods on their farms.
NRCS Response
NRCS promotes conservation methods on all farms. The program is
designed in a way that allows participants to be ranked and evaluated
on the environmental merit of their on-farm activities, regardless of
the size of their operation.
Comments
NRCS received comments expressing disappointment from applicants
whose applications were not selected for participation. Commenters
indicated their applications were rejected due to their size, lack of
sufficient income, or cropping history.
NRCS Response
The CSP has no minimum income or size limitation. However, the CSP
statute provides that land used for crop production after June 18,
2008, that had not been planted, considered planted, or devoted to crop
production for at least 4 of the 6 years preceding that date is not
eligible. Certain exceptions apply. NRCS recommends the commenters
contact their local NRCS office for additional clarification.
Resource-Conserving Crop
Comments
One commenter recommended mechanical row crop cultivation with
equipment leaving high levels of surface residue should be assigned
some points when it results in a reduction of herbicide use. Another
commenter recommended NRCS give more credit for spring planted small
grains with an under seeding of a legume or legume/grass mix. This is a
common practice among sustainable farmers here in the Midwest.
NRCS Response
CMT considers residue amounts and the use of pesticides (including
herbicides) separately. The applicant has the opportunity to be scored
for high residue levels under questions 2 and 11. Pesticide related
questions are dealt with under question 15. In the case described
above, high residue
[[Page 31636]]
levels could be part of an IPM plan to reduce the application of
herbicides.
The use of a nurse crop of grass or legume should be credited under
question 3 as a cover crop depending upon how it is handled after the
small grain is harvested and under question 4 for increased crop
diversity. It might also gain points from question 12 for wildlife
considerations, again depending on how it is handled after harvest.
Fallow Practices
Comments
One commenter recommended that fallow practices are not all the
same and should not all be ranked the same. The commenter suggested a
way be established to account for conservation fallow such as chemical
fallow. In arid agricultural regions, the purpose of this fallow type
is to idle the land for a growing season, and conserve and even
recharge soil moisture while maintaining a cover of previous crop
stubble serving to protect the soil from wind and water erosion.
NRCS Response
NRCS recognizes that fallow with high residue was not accounted for
in the current version of CMT. This oversight will be corrected for
future sign-ups.
Wildlife Habitat/Riparian Buffers
Comments
One commenter requested riparian buffers wider than 50 feet should
be rewarded. Currently the highest ranking is for buffers with a width
of 33 feet or 2.5 times the stream channel width, but wider buffers
capture more nutrients and provide real wildlife habitat.
NRCS Response
Water quality research has shown that most of the water quality
benefits are attained in buffers in the first few yards. While we
recognize that additional width is beneficial, in order to reduce the
complexity of the CMT questions, we chose to craft question 7 under the
Water Bodies/Water Courses section to ask about the minimum width
necessary for water quality. Additionally, question 7 in Cropland and
question 5 in Pasture will reward an applicant for buffers that are
wider than the minimum for water quality. NRCS is not changing the
riparian buffer requirements.
Comments
The buffer scoring should also reward higher levels of forest
canopy in regions where forests were the predominant land cover prior
to conversion to agricultural production. The current version does not
differentiate between forests and shrubs or grasses.
NRCS Response
In the CMT, Questions 7 and 8 on Water Bodies/Water Courses ask
questions about the quality of the vegetation in riparian buffers.
Buffers that are composed of native vegetation should be scored higher
than those that have non-natives.
Comments
Scoring for manure/pesticide application setbacks should be tiered
to reward greater distances from water bodies. The current version only
rewards setbacks greater than 33 feet. Higher scores should be
available for setbacks greater than 100 feet (9 on Water
Bodies/Water Courses Existing Activity Conservation Performance).
NRCS Response
Water quality research has shown that most of the water quality
benefits are attained in buffers in the first few yards. While we
recognize that additional width is beneficial, in order to reduce the
complexity of the CMT questions we chose to craft question 9 under the
Water Bodies/Water Courses section to ask about the minimum width
necessary for water quality.
Comments
One commenter requested NRCS provide special consideration to the
environmental benefits of protection of wildlife habitats and
corridors, promoting biodiversity and protecting species from the
dangerous effects of overuse of pesticides.
NRCS Response
The CMT accomplishes this through a series of questions that
address (1) the occurrence of native vegetation in buffer areas, (2)
the current level of management of pesticides, and (3) additional
enhancements the applicant will apply that will reduce pesticide
exposure to the environment and improve the quality of wildlife
habitat. Applicants that do all of these activities to protect and
benefit wildlife should score well in the CMT.
Comments
A third commenter expressed that the commenter devoted many areas
of their farm to providing habitat for reptiles and amphibians. A true
environmentalist works from the bottom of the food chain up. These
types of land stewards should be rewarded for protecting this base, not
penalized.
NRCS Response
There are many opportunities in the CMT to recognize fish and
wildlife activities an applicant is currently implementing, as well as
many opportunities for enhancements to improve fish and wildlife
habitat on a farm.
Pollinators
Comments
NRCS received requests that landowners be given credit in the
scoring system for pollinator-related values of conservation practices
that provide habitat for native and managed pollinators. Two examples
are (1) the ecosystem services that native pollinators provide, and (2)
giving beekeepers permission to place managed hives on their land to
take advantage of natural forage. To the extent innovative approaches
are developed that offer premium CSP payments, the same principles
could apply. The scoring system could also be weighted to provide
additional value to practices that provide multiple environmental
benefits.
NRCS Response
NRCS recognizes the value of pollinators to agriculture and the
environment. NRCS agrees to make changes in the CMT to specifically
include pollinator habitat in areas that are managed for wildlife
habitat. This will provide scoring in the CMT for those applicants that
are managing non-cropped and non-pastured areas for pollinator habitat.
Comments
Another commenter recommended NRCS consider awarding additional
points for selecting additional conservation practices that address
State, regional, or national resource concerns.
NRCS Response
The CMT currently does this by rewarding applicants that choose to
address additional State priority resource concerns during the life of
the contract.
Other
Comments
One commenter requested NRCS consider ALL the environmental
ramifications AND the food ramifications of its decisions. Another
commenter expressed that CSP should continue to reward farmers who are
farming at a high stewardship threshold and should provide an incentive
to maintain those high standards.
[[Page 31637]]
NRCS Response
NRCS is following the legislation and program purpose. The CSP is a
new program with a new purpose. The program is a voluntary conservation
program that encourages producers to address resource concerns in a
comprehensive manner by:
(1) Undertaking additional conservation activities; and
(2) Improving, maintaining, and managing existing conservation
activities.
Applicants that are farming at high resource stewardship levels
will score very well on the existing activities which will be reflected
in program payments. NRCS is not authorized to provide payments solely
for improving, maintaining, and managing conservation activities in
place on the operation. Conservation programs are not authorized to
make incentive payments. Under CSP, participants are paid for
conservation performance; the higher the operational performance, the
higher their payment will be.
Comments
Another commenter expressed that a practice designed to achieve
wildlife or other conservation practices could generate significant
benefits for native and managed pollinators by integrating modest
enhancements such as selections of pollinator-beneficial plants.
Similarly, conservation efforts for native and managed pollinators will
advance other natural resource objectives including the new natural
resource challenge of mitigating and managing the adverse impacts of
climate change.
NRCS Response
A review of CSP enhancements and practices is currently underway
with recommended changes and improvements to be incorporated into the
next ranking period. Of the 82 CSP enhancements that were available
during the first sign-up period, 27 included a wildlife focus or
purpose. In addition, over 70 percent of the funding pools identified
wildlife related issues as one of their priority resource concerns. No
changes are made to the rule in response to these comments.
Comments
One commenter encouraged NRCS to consult with USFS on analysis of
environmental benefits. Considerable data and research guidance on such
matters is available from the USFS State and private forestry, as well
as the recently established USDA Office of Ecosystem Services and
Markets.
One commenter recommended NRCS give additional weight to projects
that yield significant public benefits beyond the boundaries of the
enrollee's property. For example, NRCS could develop a suite of
priorities that pre-qualify proposals that achieve one or more of the
following: Nitrogen and sediment run-off benefits in targeted
watersheds.
Greenhouse Gas Sequestration Benefits
One commenter expressed that some areas of resource concerns seem
undervalued. For example, the fertilizer decisionmaking questions in
the operation profile focus on soil nutrient tests, but the California
perennial crop growers have long used the more sophisticated plant
tissue testing methods which are not mentioned until you reach the
``enhancement'' section.
One commenter requested NRCS encourage proposals/awards to farms/
farmers that make a contribution to lessen C02 emissions
from sunlight oxidizing organic material from bare soil on America's
Farms.
NRCS Response
CSP currently rewards farmers who limit tillage and keep the soil
covered either with residue or cover crops and practice advanced
nutrient management techniques. This is done by questions in the CMT
and through enhancements that are targeted to these concerns.
Application and Ranking--Weighting of Ranking Factors
Comments
NRCS received numerous comments regarding policy options for the
weighting of ranking factors. The comments were evaluated and given
consideration in the development of the CEA. To add clarity to the
issue of weighting ranking factors, NRCS amended 1470.20(d) to read,
``Weighting of ranking factors. To the extent CSP objectives, including
implementing new conservation, are not being achieved as determined by
the Chief, NRCS will adjust the weighting of ranking factors in order
to place emphasis on improving and adding conservation activities.''
Additionally, NRCS adds a new paragraph (e) regarding State and local
priorities that enables the Chief to develop and use additional
criteria for evaluating applications to ensure national, State, and
local priorities are effectively addressed.
Weight Between Existing/Additional Conservation Activities
Supporters of Equal Weighting
Overall, commenters expressed concern over how NRCS will weight new
and existing practices. Numerous comments were received expressing
concern that if NRCS selects those who have considerable conservation
measures to adopt over those who have actively been practicing higher
levels of stewardship, NRCS will be punishing those who are practicing
good stewardship. A recurring theme within the comments is that NRCS
should not discriminate against early adopters and that the sole
measure should be the environmental benefits secured by the total
conservation system regardless of the timing of adoption of various
parts of the system.
Thirty-one comments were received expressing that CSP should
equally balance the benefits of both existing and new practices. The
most important aspect of CSP needs to be the measure and rewarding of
conservation benefits secured by a farm regardless of the timing or
adoption of various conservation measures or practices. Farmers who
have adopted conservation measures should get the same incentive as a
farmer who newly adopts conservation measures and agrees to continue
them into the future. This policy will reward farmers who have been
doing good things for the environment, it will give them an incentive
to continue the conservation practices, and it will encourage
surrounding farmers to do more conservation to qualify for CSP
incentives. Ultimately this will result in better conservation of our
environment overall. Another commenter who supported this position
recommends existing and new practices have equal merit in determining
participation because existing practices require intensive management
to sustain them.
Similarly, 45 commenters expressed that farmers applying to
participate in CSP should be ranked on environmental outcomes
regardless of whether the conservation practice was previously adopted.
A system that emphasizes the existing environmental outcome should be
the ultimate goal.
Two commenters requested that conservation enhancements score
higher than related conservation practices, and that point values for
existing conservation score equally with new conservation. Moreover,
the baseline portion of the CMT should allow farms to accumulate points
for the full range of conservation practices and
[[Page 31638]]
enhancements that are in the non-baseline portion of the CMT.
NRCS Response
NRCS acknowledges the concerns and will seek to clarify that the
CSP is not penalizing good stewards of the land. CSP is a competitive
program that rewards applicants for their existing conservation system
as well as for the proposed increased conservation performance. NRCS
has designed the program as presented in the 2008 Act. The ranking
factors used to evaluate an applicant's conservation performance are
provided by the legislation, in which three out of the four factors are
crediting producers for additional conservation activities. NRCS
recognizes this is a significant concern for good stewards of the land,
and while reviewing the first sign-up data, will consider all the
comments made about this topic. NRCS will take in consideration all
comments received for future analysis and if adjustments are needed,
will be made before the next ranking period.
It is important to emphasize that each applicant's existing
conservation activities are evaluated and used to determine if they
have met the minimum stewardship threshold for resource concerns. Those
applicants with a high level of conservation are more likely to exceed
the minimum stewardship threshold on more resource concerns resulting
in a higher ranking score, increasing their chances of being selected
for program funding.
Good stewards are encouraged to adopt additional conservation
activities while increasing the environmental benefits they are
providing which in turn will result in a higher ranking score and
increase their chances of being selected for program funding.
NRCS acknowledges the concerns and will seek policy options that
ensure that CSP does not penalize good stewards of the land.
Supporters of More Weight on Additional Practices
Comments
Not all commenters supported the equal weighting concept. Five
commenters supported placing greater weight on additional practices.
One commenter expressed that both the law and conference report,
``encourage the Secretary to place emphasis on improving and adding
conservation activities.'' Therefore, NRCS should follow this guidance
by placing an emphasis in the ranking criteria for new practices
adopted with less weight for existing practices. Another urged that
greater emphasis and valuation be given to scoring additional
conservation practices and the increased outcomes they will provide.
The third commenter urged implementation of the CSP consistent with
statutory intent, with emphasis on rewarding landowners for additional
conservation enhancements. Habitat loss and degradation is a major
identified cause of decline for both native and managed pollinator
populations. CSP provides economic reward to landowners to increase
habitat as part of their farming, ranching, and stewardship actions.
Several comments suggested that more weight should be on existing
practices. One commenter recommended that the program and its benefits
be geared to those who have taken the steps to conserve their resources
and that other USDA programs are available for those wanting to install
new practices. Three others offer that the most cost-effective
conservation practices are the ones already installed; therefore, early
adopters should receive credit and not be penalized.
Other Comments
One commenter offered that during the most recent CSP application
period, it was common for producers to have already enacted several of
the enhancements listed. In many cases, compensation and recognition
for these conservation efforts farmers have adopted on their own was
not possible. There should be a way when establishing the producer's
conservation activity baseline with the CMT that the questions asked
and points offered correspond with the enhancements offered. The
producer then would get credit in ranking factor 1 for those
enhancements already adopted and correspondingly would be able to add
them as enhancements and receive credit if they are not in practice.
One commenter recommended that if a producer receives credit for a
practice as an enhancement, then a producer should receive the same
credit for the practice if it is already implemented on their
operation.
One commenter suggested that there needs to be a way within the CMT
to address and give credit to farmers who have been extremely active in
adopting conservation practices. If a practice is listed as an
enhancement, then the producer that has already adopted that particular
practice should receive equal points or credit within the CMT. If the
CMT can be used to estimate the existing and proposed conservation
performance, it should therefore be able to credit existing
conservation practices.
NRCS Response
NRCS has thoroughly reviewed the questions in the CMT and the
enhancements. Almost all of the enhancements are reflected either
directly or indirectly in the CMT. The few that are not are
inconsequential in terms of CMT scoring. Therefore, an applicant's
current level of stewardship, even if it includes enhancement
activities, should be reflected in the CMT score.
Comments
Seven commenters expressed that ranking and payment point values
should be roughly equivalent for ongoing organic management and new
conversions or transition to organic. Another recommended NRCS credit
existing organic system plans with a specific baseline question and
ranking score for existing conservation activities.
NRCS Response
The CSP evaluates each applicant's conservation activities as to
their impact on seven resource concerns plus energy. No two systems
will have the exact same impact on all resource concerns. Giving equal
environmental benefits to an established organic system and one that is
in transition would be penalizing the established organic producer at
the expense of the one in transition. While over the course of time the
transition farmer might catch up, the CSP rules require the
conservation evaluation to be done on the system at the time of
application. This same concept would apply to an organic system plan.
While they all may meet the national organic plan rules, they all do
not provide the same level of environmental benefits.
Comments
One commenter recommended that CSP continue to require additional
practices, especially when the farm operator already is practicing
multiple conservation practices.
NRCS Response
The CSP offers a defined, limited suite of management practices for
the explicit purpose of encouraging producers to meet additional
stewardship thresholds.
Comments
One commenter expressed that there are point values that are off by
very large factors, well beyond any possible justification based on
cost. For instance, NRCS estimates the payment range for newly adopted
resource-conserving crop rotations at $12-16 per acre, yet the payment
for an existing resource-
[[Page 31639]]
conserving crop rotation as reflected in the baseline assessment points
could be as low as $1 per acre. This is a fundamental flaw in the
current CMT that needs to be quickly addressed and remedied before the
FY 2010 enrollment process gets underway. We have previously suggested
different ways to fix this problem to the agency, and we are very
interested in continuing to pursue practical solutions.
NRCS Response
NRCS respectfully disagrees with the comments. The contrast between
payment for adopting a resource-conserving crop rotation and existing
conservation activities is because they are compensated through two
different payment types, not because CMT point values are off. By
statute, CSP offers participants two possible types of payments:
(1) Annual payments for installing and adopting additional
activities, and improving, maintaining, and managing existing
activities; and
(2) A supplemental payment for the adoption of resource-conserving
crop rotations.
NRCS received significant feedback from national, State, and
regional organizations that emphasized the crop rotation provision's
importance to the overall success of the program and the need to
implement it in a comprehensive, meaningful manner. NRCS also found
direction in the Farm Bill Joint Explanatory Statement of the Committee
of Conference, which provided guidance that, ``The Managers intend for
the supplemental payment to encourage producers to adopt new,
additional beneficial crop rotations that provide significant
conservation benefits.'' With consideration to that feedback, NRCS used
variable cost and price information to compare the difference in net-
returns between ``conventional'' and ``resource-conserving'' crop
rotations and arrive at the supplemental payment rate. Based on past
program experience, NRCS believes this approach provides the level of
meaningful compensation needed to encourage producers to adopt
additional resource-conserving crop rotations and effectively use this
aspect of the program.
Comments
This feature is of critical importance to sustainable and organic
farming. The ranking and payment system, which is currently equally
weighted between existing and new superior conservation, should be
changed. USDA has indicated that serious consideration is being given
to giving more weight to the adoption of practices, resulting in
smaller enrollment chances and smaller payments for farmers already
practicing superior land stewardship.
NRCS Response
NRCS is currently evaluating the first sign-up data and will make
adjustments needed to the program to ensure the program objectives are
met.
Stewardship Threshold
Comments
NRCS received nine comments on the topic of stewardship thresholds.
One commenter encouraged forest landowners to participate in CSP and in
general believe that conservation assistance should be available for
farm, ranch, and forest lands. Eligible participants should meet the
stewardship threshold for one resource concern at the time of their
application. The commenter believes that this approach will allow more
participants to be eligible for the program.
Two commenters recommended that the applicant should be meeting the
stewardship threshold on a minimum of three resource concerns that
includes at least one priority concern. Requiring producers to meet at
least three of the nine potential resource categories is more
commensurate with the goal of encouraging producers to adopt a
rewardable level of conservation on their farmed lands.
One commenter expressed that meeting the stewardship threshold and
one priority resource concern is not adequate unless that priority
resource concern includes wildlife. Wildlife enhancements provide
multiple resource benefits to soil, water, and wildlife as well as
greater conservation return for the dollars invested. Another commenter
thought the level was adequate, providing it is considered an entry
level requirement for the program. The entry level must be low, but at
the same time not discourage the best farmers in America.
NRCS Response
No changes are made to the regulation in response to this comment.
The statute provides that to be eligible to participate in the CSP, a
producer will demonstrate, to the satisfaction of the Secretary, that a
producer, at the time of the contract offer, is meeting the stewardship
threshold for at least one resource concern and would, at a minimum,
meet or exceed the stewardship threshold for at least one priority
resource concern by the end of the stewardship contract.
NRCS does not have authority to require a producer to meet a
specific priority resource concern to participate in the program. The
CSP authorizing language provides that three to five priority resource
concerns are identified at the State level for each geographic area or
region, in consultation with the State Technical Committee, as a
priority for a particular watershed or area of the State.
Comments
One commenter requested each State be given the authority to
increase the stewardship threshold if they wish to have a more targeted
impact to achieve particular conservation goals.
NRCS Response
The CMT is not currently designed to allow States to make
adjustments on scorings, thresholds, questions, or activities. The tool
has been normalized and calibrated and to enable State access, will
require a major rebuild of the tool that will also impact other program
processes. However, NRCS will explore options to allow States to make
adjustments as we move into the future with the program.
Comments
One commenter expressed that the statute provides a choice to the
applicant to address one or more resource concerns as a condition of
eligibility and requires them to choose one more priority resource
concern to address either at the outset or during the first contract
term, but does not provide discretion to the Department to require
more. Therefore, the commenter does not recommend the agency consider
changing the interim final rule provision.
NRCS Response
NRCS agree with the commenter and intends to maintain the provision
in the interim final rule as stated in the legislation.
Comments
One commenter questioned how high is the stewardship threshold for
the resource concern or priority resource concern?
Second, how comprehensive is the level of treatment required for
each resource concern and priority resource concern, and is it truly
based on resource outcomes and conditions?
NRCS Response
NRCS set the threshold numbers for each resource concern by running
a nation-wide test on a sampling of farms. NRCS Conservationists judged
the level of resource treatment on each farm, and the CMT was then run
on each of the
[[Page 31640]]
farms. The resulting scores were compared to the level of treatment
that was determined by the Conservationist. Threshold scores were then
set at the average of the scores for the farms that were determined to
be adequately addressing the resource concerns on the farm, what NRCS
refers to as the Resource Management System level of treatment.
Comments
Third, is it possible that the priority resource concern might be
the same as the resource concern? The answer to each of these questions
will inform our understanding of whether the bar for participation in
CSP has been set at an appropriate level.
NRCS Response
The resource concern and priority resource concern used to meet the
stewardship threshold criteria must be different for the same land use.
For example, an applicant is only meeting one resource concern, which
also happens to be a priority resource concern at the time of
application. That resource concern would meet the ``one resource
concern at the time of application'' criterion. However, a different
priority resource concern would need to be used to meet the ``one
priority resource concern at the time of application, or by the end of
the stewardship contract'' criterion.
Comments
One commenter expressed support for using EQIP practices that
directly contribute to a CSP participant's ability to meet or exceed
stewardship thresholds. It will both allow CSP to function properly and
be an excellent use of EQIP, because the funds will be directed to
meeting the stewardship threshold for priority resource concerns for
the State or geographic area within the State. The commenter requested
NRCS design a process that eliminates redundancy and minimizes
paperwork in the sign-up process. The commenter urged NRCS to have this
process ready for the 2010 sign-up period.
NRCS Response
NRCS agrees to address the recommendation by adding language to
section 1470.7(c) as follows:
``CSP encourages the use of other NRCS programs to install
practices that are required to meet the agreed-upon stewardship
threshold only if the practice is not compensated through CSP.''
Resource Concerns
Comments
NRCS received several comments related to resource concerns. NRCS
should include consideration of habitat and forage needs for both
native and managed pollinators, requiring producers to address multiple
resource concerns fits within the purpose of CSP to promote
comprehensive conservation planning and to encourage producers to adopt
new activities or maintain existing ones. NRCS should include the
addition of a special provision for first-year beginning farmers or
ranchers in the eligibility section (1470.20(b)(1) concerning resource
concerns.
NRCS Response
Regarding eligibility, NRCS decided to adopt the statutory
provision without additional restrictions in order to attract a broad
spectrum of eligible producers. NRCS does have flexibility with how it
ranks applications. The greater the number of resource concerns the
applicant addresses and those planning on being addressed, increases
the ranking score. Data from the first sign-up shows that 99 percent of
applicants are meeting more than one resource concern at the time of
application.
Comments
Another commenter expressed concern that the practices that rank
``very high'' seem targeted at Midwestern grain producers.
NRCS Response
No changes are made to the regulation. NRCS keeps the language in
the interim final rule to be consistent with the language in
legislation. Practices are scored based on the environmental impact
they have across 27 micro-resource concerns regardless of physical
location. Further, program allocations and ranking pools are
established and operated at the State level. Applications do not
compete across State boundaries or ranking pools.
Pollinators
Comments
Several comments were received related to pollinators. Commenters
asked NRCS to seek innovative ways in the CSP to maximize forage
outcomes for honey bees and other pollinators; place emphasis on
rewarding landowners for additional bee forage; enhance planting mixes
to include plants that provide optimal forage for honey bees; and urged
NRCS to allow planting mixes to be enhanced at the national and State
levels by including plants suitable for each region that provide
optimal forage for honey bees. Additionally, NRCS received a number of
specific recommendations to address the habitat needs of native and
managed native pollinators.
NRCS Response
NRCS welcomes suggestions on additional enhancements from all
partners. NRCS solicited input from a wide source of expertise and will
continue to do so for future enhancements. NRCS will evaluate the
recommended enhancements and will incorporate those viable for future
ranking periods.
Comments
One commenter urged the Chief to direct the development and
integration of appropriate additional criteria that adequately reflect
the objectives of the new conservation provisions of the Farm Bill for
native and managed pollinators as an important part of ensuring that
national, State, and local conservation priorities address resource
needs related to native and managed pollinators and the agriculture
pollination and ecosystem services they provide.
NRCS Response
No changes are made to the regulation in response to this comment.
NRCS will modify the questions in the CMT to specifically mention
pollinator habitat as part of these questions. Pollinator habitat can
be considered when answering the inventory questions, specifically
question 7 under cropland and question 5 under pasture. In addition,
the program offers an enhancement to Establish Pollinator Habitat for
cropland, pastureland, rangeland, and forest land. In the 2009 sign-up
this enhancement was in the top ten most popular enhancements selected
by applicants.
Priority Resource Concerns
Comments
NRCS received numerous comments on the topic of priority resource
concerns. In the interim final rule, NRCS requested specific comments
on whether wildlife should be a required resource concern, and as a
result, many of the comments focused on wildlife. NRCS received the
following feedback: NRCS should establish wildlife as one of the
national ranking priorities by incorporating State wildlife action
plans in the CSP ranking tool and require producers to address multiple
resource and priority concerns, rather than just requiring all States
to select ``wildlife'' as a priority resource concern. NRCS
[[Page 31641]]
should clearly require States to be more strategic by identifying
particular indicator species or suites of species and specific habitats
as priority resource concerns for at least one geographic area within
the State. Forty-one respondents identified biodiversity and fish,
wildlife, pollinator, and beneficial insect habitat to be specifically
added as a priority resource concern; priority resource concerns
related to the needs of native and managed pollinators should be
incorporated, it is important that fish, forest, and wildlife resources
be given adequate priority and attention; the agency should strongly
encourage but not absolutely mandate that one or more wildlife habitat
resource concerns be included among the up to five priority resource
concerns in each watershed or State; NRCS should identify forage and
habitat for agriculture pollinators--honey bees and native
pollinators--as a national priority resource concern; State offices
should be encouraged to make a similar determination, especially in
States or regions where agriculture pollination services are important
and where forage deficits are recognized as a limiting factor for
healthy honey bees and native agriculture pollinators.
NRCS Response
Although the commenters preferred to include wildlife as a priority
resource concern, NRCS has determined the decision will continue to be
made at the State level in consultation with the State Technical
Committee. NRCS prefers to have the resource concerns determined at the
State level by people more familiar with the local issues. NRCS
evaluated data from the initial program sign-up and determined it is
not necessary to identify wildlife as a priority resource concern at
the national level. Seventy-seven percent of the funding pools
identified wildlife as one of the priority resource concerns. With such
a high percentage of pools recognizing the importance of wildlife, the
national designation seems unnecessary. Therefore, NRCS encourages
commenters and others to voice their concerns or recommendations to the
NRCS State Conservationist and the State Technical Committee in their
respective State as to which resource concerns should be a priority in
their State or area of the State.
Comments
Commenters questioned specific priority resource concerns selected
by States.
NRCS Response
NRCS has chosen broader resource concerns categories which is
consistent with the agency planning procedures. NRCS historically has
planned to address soil, water, air, plants, and animal concerns. The
recommended priority resource concerns fall under one or more existing
categories that are used for CSP. NRCS encourages commenters and others
to voice their concerns or recommendations to the NRCS State
Conservationist and the State Technical Committee in their respective
State as to which resource concerns should be a priority in their State
or area of the State.
Comments
NRCS received suggestions regarding broad priority resource concern
categories for State selection. Another commenter recommended
biodiversity promoting Prairie Reconstructions (50 species or greater)
as a priority resource concern.
NRCS Response
NRCS welcomes the suggestions to improve CSP and will consider
recommendations related to priority resource concern categories. NRCS
has included Prairie Reconstructions in the resource concerns under the
Plants category. No changes are made to the regulation in response to
this comment as the regulation does not include language on each
priority resource concern.
Comments
Another commenter recommended farm energy efficiency and the
reduction of direct and indirect fossil fuel based energy in
agriculture needs to be more emphasized as a priority resource concern.
NRCS Response
NRCS already considers farm energy efficiency and the reduction of
fossil fuels under the Energy category. No changes are made to the rule
in response to the comment.
Comments
One commenter recommended that farms in impaired watersheds, listed
by the EPA under section 303(d) of the Federal Clean Water Act, should
be required to address water quality as one of their priority resource
concerns. Another recommended, in addition to the priority resource
concerns that are identified by the NRCS State offices, codify a suite
of criteria tailored to ensure that CSP addresses targeted regional and
national resource priorities that are inherently cross boundary and
multi-jurisdictional; for example, projects that produce measurable
downstream outcomes in reducing nitrogen and sediment run-off in
targeted watersheds (i.e. the Chesapeake Bay) that are shared by
multiple States or projects that have measurable benefits in
sequestering or preventing the release of N20 and other greenhouse
gasses.
Three commenters recommended NRCS set priorities on specific
resource concerns at the State and local levels in close coordination
with the landowners that the program is targeted to serve. Such
coordination will provide the best opportunity for CSP to fulfill
Congress' intent of targeting the conservation needs of working
agricultural lands and their operators.
One commenter encouraged strategic emphasis on ``at least'' one
priority resource concern.
NRCS Response
No change is made to the regulation in response to these comments.
The priority resource concerns are selected at the State level. States
use a variety of resources to determine the priority resource concerns.
NRCS agrees that the 303(d) list of waters reports on streams and lakes
could be a good reference to assist States in determining the priority
resource concerns for their geographic areas. In the initial CSP sign-
up, 89 percent of the funding pools listed water quality as one of the
priority resource concerns.
Comments
One commenter expressed, with the exception of unusual geographic
circumstances where the consensus is that one priority resource concern
is overridingly important, the goal should be for landowners to meet
more than stewardship threshold. Additional enhancements should be
designed to meet more than one stewardship threshold where practicable.
NRCS Response
Most enhancements provide benefits to multiple resource concerns.
Enhancements that produce multiple benefits across resource concerns
are scored as such in the CMT. Producers will be rewarded for each
resource concern individually.
Comments
One commenter recommended amending paragraph 1470.20(b)(2) to add
``in addition to the resource concern described in (b)(1)'' after the
words ``priority resource concern.''
[[Page 31642]]
NRCS Response
NRCS agrees with the commenter and will amend paragraph
1470.20(b)(2) as suggested. The paragraph will read ``Would, at
minimum, meet or exceed the stewardship threshold for at least one
priority resource concern in addition to the resource concern described
in (b)(1) by the end of the conservation stewardship contract * * *''
Comments
Several commenters identified that resource and priority resource
concerns for an area need to be specific, stable, and consistent to
give producers confidence that bringing their operations up to the
basic stewardship threshold level for one or more of the resource
concerns may in fact lead to a CSP contract in the future. If the
resource concerns change too often and in an unpredictable manner, CSP
cannot serve as an effective incentive for operators to improve their
performance.
NRCS heard from several commenters that it needs to provide clear
guidance on how States choose priority resource concerns. One commenter
requested NRCS take a close look at how all States selected priority
resource concerns for the FY 2009 sign-up. States should choose
priority resource concerns that are both specific and are, in fact, the
most important environmental challenges associated with agricultural
production in particular areas of the State. Another commenter
suggested NRCS closely follow the definition set in the statute, and
require States to select priority resource concerns for specific
geographic areas.
NRCS received a comment that it should consider offering an
incentive through higher acreage allocations to States that do a good
job of implementing CSP to produce measurable improvements to specific
habitat types and other specific priority resource concerns. Another
commenter suggested States establish very broad priority resource
concerns. NRCS also received a comment that the potential benefit of
geographically-focused ranking pools may not be realized because it may
be difficult to ensure that priority is given to applicants who offer
to do the most to solve specific pressing resource concerns in each
geographic area.
NRCS Response
NRCS will consider the recommendations for future ranking periods.
NRCS will give States an opportunity to review the priority resource
concerns to ensure they select the most appropriate priority resource
concerns that best represent the impairments and concerns in their
areas for subsequent ranking periods.
Applicants who offer a management system that addresses the
priority resource concerns selected for the geographic area will score
very well and increase their chances of being awarded a contract.
However, applicants are competing among other applicants with similar
resource challenges. Program funding, State acreage distribution among
ranking pools, and characteristics of the applicants within a ranking
pool will be determining factors in whether an applicant is awarded a
contract.
Section 1470.21 Contract Requirements
Comments
NRCS received four comments related to the contract requirements in
this section. The comments are addressed separately.
One commenter expressed there is considerable discussion regarding
``available funds.'' Should a situation arise that Federal funding is
incomplete or not available for CSP, the farmer's continued contract
obligation should be reduced proportional to the reduction in payment.
NRCS Response
NRCS believes this scenario is unlikely to happen as Congress
recognizes the positive benefits on the environment produced by the
CSP. However, in the event that funds are reduced, NRCS will make
Congress fully aware of the impacts this action will have on
participants' contracts and on the landscape. No change is needed to
the rule in response to this comment.
Comments
One commenter requested NRCS create an exception that allows for a
temporary suspension of practices or a temporary reduction in
conservation performance for the installation of infrastructure and
equipment necessary to undertake additional CSP enhancements. This
exception could be administered by setting a specific timeframe and
conditioned on a requirement that the project is anticipated to result
in higher overall levels of conservation performance.
NRCS Response
NRCS understands there may be circumstances where a temporary
reduction is justified when the reduction is very minor compared to an
eventual much larger stewardship gain or the plan might include
mitigating activities to offset the temporary situation. In either
case, it should be covered in the stewardship plan on a case-by-case
basis and does not require any change in the CSP rule.
Comments
One commenter expressed that the 5 years of an operator's contract
is not a very long time for an environmentally friendly conservation
practice. The commenter suggested that 10 years of a landowner's
commitment to a conservation practice is worth a lot more.
NRCS Response
No change in the rule is needed. NRCS is following a legislative
requirement regarding the duration of the contract. A conservation
stewardship contract will be for 5 years. However, at the end of an
initial conservation stewardship contract NRCS may renew the contract
for one additional 5-year period when the participant demonstrates
compliance with terms of the existing contract and agrees to adopt new
conservation activities.
Comments
One commenter observed that each of these provisions contains
important applicant and participant rights and obligations about which
they must be clearly and regularly informed during each of these CSP
phases. Clear and regular NRCS guidance about these rights and
obligations would give applicants and participants appropriate
information to reinforce their ability to apply for or implement a CSP
contract without reservation or uncertainty.
NRCS Response
Program contract requirements are explained in great detail on the
Contract Appendix (Form NRCS-CPA-1202). The appendix is given to
producers at the time of application. The Appendix is reviewed,
accepted, and signed by the applicant before contract obligation and is
incorporated into the contract by reference. Additional efforts to
inform producers of their obligations are listed on the conservation
performance summary report from CMT, producers self screening
checklist, conservation stewardship plan, job sheets, and practice
standards. In addition, NRCS continuously updates the CSP Web site with
information pertaining to program requirements and participants'
obligations.
Comments
Another commenter expressed that the conservation stewardship plan
will
[[Page 31643]]
clearly be an important, integral part of any contract, but the plan
development and oversight costs must be balanced with the
implementation costs borne by the participating farm operator.
NRCS Response
Farm planning is an integral part of any agricultural operation,
and developing and following a conservation plan does take time and
effort. While financial assistance programs such as CSP compensate the
landowner for many of the incurred costs of conservation measures, farm
programs cannot cover all costs. The landowner (and the community)
receives benefits from conservation activities in the form of
sustainable crop and livestock yields, improved water quality, reduced
labor, improved wildlife habitat, and many other monetary, social, and
environmental benefits. NRCS requests that the commenter consider these
benefits as off-setting the uncompensated planning costs of a
conservation plan. No changes are made to the rule in response to this
comment.
Section 1470.22 Conservation Stewardship Plan
Comments
NRCS received six comments related to conservation planning. One
commenter recommended that the term ``conservation stewardship plan''
when expressed in the context of NIPF participation specifically
reference the forest stewardship plan as the requisite plan to
participate in CSP (pursuant to the Forest Stewardship Program, section
5 of the Cooperative Forestry Assistance Act of 1978). Another
commenter expressed that nothing in the rule should prevent forest
landowners with a FSP from participating in the program.
NRCS Response
No changes are made to the rule in response to the comments. The
CMT is used to determine program eligibility, ranking score, and
payment points. A FSP is not a requisite to participate in CSP.
However, if a FSP exists it could be referenced in the conservation
stewardship plan.
There is nothing in the rule that will prevent forest landowners
with a conservation stewardship plan from participating in the program.
Comments
One commenter recommended, in paragraph 1470.22(b), NRCS add the
words ``maintained'' after ``managed.''
NRCS Response
No changes are made to the rule in response to the comment. The
Conservation Performance Summary Report from CMT documents the existing
system that the participants are required to maintain. This information
is not duplicated in the conservation stewardship plan. By signing the
contract, applicants agree to the conservation plan and to maintain
existing conservation performance levels and achieve additional
conservation performance improvements as identified on the Conservation
Performance Summary Report by land use for the contract period.
Comments
One commenter identified that the CTA conservation plan approach
has long dealt at the field level with the realities of conservation
planning for farms that have sizable quantities of rental acres. The
commenter recommends that NRCS draw upon this field level expertise
with preparing conservation plans for farms, in combination with the
CSP's statutory direction to comprehensively address a farm's resource
concerns, to determine on a case-by-case basis how much of a producer's
acreage under their operational control must be enrolled in a CSP
contract to make the conservation planning process work for that
operation.
NRCS Response
No changes are made to the rule in response to the comments.
However, minor changes were made to the rule in response to comments
about control of the land. The rule was amended in 1470.6 to mirror the
statute. The CSP statute states that eligible land will include all
acres in an agricultural operation of a producer whether or not
contiguous, that are under the effective control of the producer at the
time the producer enters into a stewardship contract, and is operated
by the producer with equipment, labor, management, and production or
cultivation practices that are substantially separate from other
agricultural operations.
Section 1470.23 Conservation Activity Operation and Maintenance
Comments
Section 1470.23, ``Conservation system operation and maintenance,''
addresses the participant's responsibility for operating and
maintaining existing conservation activities on the agricultural
operation to at least the level of conservation performance identified
at the time the application is obligated into a contract for the
conservation stewardship contract period.
Operation and Maintenance
NRCS received two comments regarding operation and maintenance. In
particular, both respondents recommended changing ``Operation and
Maintenance'' to ``Management and Maintenance'' to reflect accurately
the statutory terms.
NRCS Response
NRCS agrees with the commenters and amends section 1470.23,
Conservation activity operation and maintenance, to read as follows:
The participant will maintain and manage existing conservation
activities to at least the level of conservation performance identified
at the time the application is obligated for the contract period and
any additional activities installed and adopted over the term of the
contract.
Section 1470.24 Payments
Section 1470.24, ``Payments,'' describes the types of payments
issued under CSP, how payments will be derived, and payment
limitations.
Payments-In General
NRCS received 53 comments on the topic of payments in general.
These comments can be organized into subtopics including:
Adjustments
Comments
NRCS received three comments on adjustments to payments rates. One
commenter urged NRCS to adjust payment rates based on the results of
monitoring and evaluation and on-farm research and demonstration.
Another commenter recommended if the payments are raised for any of the
practices, they should be made retroactive to the farmers who sign-up
this year. A third commenter strongly encouraged NRCS to clarify that
CSP contracts may be modified to address additional resource concerns.
NRCS Response
CSP participants will receive an annual land use payment for
operation-level environmental benefits they produce. Under CSP,
participants are paid for conservation performance not for individual
activities.
Payment supporting information used for establishing the 2009
national payment rates will not change for
[[Page 31644]]
contracts enrolled in the initial ranking period.
NRCS will not be modifying contracts to address additional resource
concerns. Applicants will be evaluated based on the activities they
have implemented and additional activities they commit to at the time
of application that they are willing to install and adopt. NRCS will
not allow contract improvement modifications that will increase annual
payments in order to manage fund obligation amounts.
Rewarding Existing Conservation
Comments
One commenter expressed that maintaining payments for farms already
engaged in sound conservation methods will provide a network for such
farmers and new and beginning farmers. Another encouraged NRCS to
continue to work toward establishing equity in benefits paid to farmers
for equivalent levels of conservation to ensure that farmers who work
towards greater levels of conservation are recognized for their
contributions. One commenter expressed that the payment rate should be
the same for current and new activities. This commenter could not
select several enhancements because the commenter was already doing
them.
NRCS Response
The CSP Managers' Report provides that the managers encourage the
Secretary to place emphasis on improving and adding conservation
activities. In general it costs more to implement new practices than to
maintain existing practices. NRCS intends to implement a split payment
structure with one payment rate for existing activities and a higher
payment rate for additional activities. NRCS' payment structure will
recognize producer's conservation contributions regardless of the
timing of implementation. The structure is designed to encourage
participants to adopt enhancements to accelerate their conservation
efforts. NRCS amended the rule in paragraph 1470.24(a) to add ``A
split-rate annual payment structure will be used to provide separate
payments for additional and existing conservation activities in order
to place emphasis on implementing additional conservation.'' To further
encourage additional activities, the final rule provides in paragraph
(a)(2) that participants must schedule, install, and adopt at least one
additional conservation activity on a land use in order for that land
use to earn annual payments.
Statutory Adherence
Comments
NRCS received a few comments related to whether payment rates
adherred to statutory provisions.
Two commenters identified that NRCS gives no apparent explanation
in the interim final rule's Summary of Provisions why it is requiring
in subpart B, one- and three-year schedules for the completion of
contractual CSP enhancements. Congress does not address this issue in
the Farm Bill or the Statement of Managers. Absence of an explanation
makes the provision appear arbitrary. It should be dropped from the
rule because the schedules would unfairly and unreasonably limit a
participant's flexibility and adaptability to achieve, productively and
realistically, the targeted conservation benefits.
NRCS Response
No changes are made to the rule in response to the comments. The
requirement that a participant must schedule, install, and adopt at
least one activity in the first year of the contract is an agency
policy and is incorporated into the final rule. NRCS chooses to retain
the requirement to be consistent with other NRCS programs and to
accelerate conservation benefits. The requirement that all enhancements
must be scheduled, installed, and adopted by the end of the third year
is a programmatic decision to ensure that program objectives are met
and allow sufficient time to evaluate the conservation system.
Participants will receive prorated annual payments over 5 years for the
activities they install, adopt, and maintain. The policy to require all
enhancements to be started by year three of the contract is designed to
achieve conservation benefits on the land at a faster rate than if
producers choose to adopt activities in year four or five of the
contract.
NRCS believes this policy maximizes the environmental benefits
produced, minimizes contract administration, and helps producers
maximize their payments. Payments are based on the participant's
performance which is calculated based on the potential and
environmental benefits produced. The longer the activity is on the
ground, the more environmental benefits they produce translating to a
higher payment.
Enhancements
Comments
Six respondents addressed the issue of payments for enhancements.
NRCS received requests for higher payment levels; one commenter
expressed that Enhancement ANM11, patch burning to enhance wildlife
habitat, does not pay enough to persuade producers considering the
danger and work involved. FSA pays considerably more to burn entire
patches of CRP; one commenter expressed a willingness to plant native
shrubs, trees, create shallow ponds, and otherwise create a haven for
wildlife on his property rather than mow 10 acres like all of his
neighbors if a financial incentive were provided; one commenter opined
that based on the intent of the law it appears a producer would only
receive the maximum CSP payment from NRCS if they had addressed all
resource concerns on their entire operation. If such is the case, then
the producer would simply continue receiving payments with a contract
extension as long as they continued to follow their plan. If a producer
had not addressed all resource concerns, then higher payments could
only be awarded if additional resource concerns were addressed.
NRCS Response
No changes are made to the rule in response to the comments.
Participants are being compensated for existing conservation through
the annual payment. However, legislation requires that payments are
made for existing and new conservation activities.
The CSP presents a significant shift in how NRCS provides
conservation program payments. CSP participants will receive an annual
land use payment for operation-level environmental benefits they
produce. Under CSP, participants are paid for conservation
performance--the higher the operational performance, the higher their
payment.
Participants' annual payments are not determined using the
traditional compensation model where they receive a percentage of the
estimated practice installation cost or a per acre rental rate. Instead
participants' annual payment level will be unique for their operation
and land uses based on the combined total of environmental benefits
from existing and new activities.
Comments
One commenter recommended NRCS add in paragraph (a)(4)(i)--``and
practices'' after ``enhancements'' both times and add ``practice''
after ``enhancement.'' In paragraph (b) and (b)(2) add ``or improve''
after ``adopt.''
NRCS Response
No changes are made to the rule in response to the comments. CSP
allows producers to substitute enhancements.
[[Page 31645]]
Practices are not to be substituted as they are utilized to encourage
producers to meet additional resource concerns. A practice substitution
may not meet the stewardship threshold for a resource concern which may
result in a producer being ineligible for the program.
Other Program Payments
Comments
Five respondents address the interrelationship between CSP payments
and other program payments. One commenter recommended that producers be
allowed to utilize programs, including EQIP and WHIP, to help fund the
installment of enhancements as long as they do not duplicate payments
on lands enrolled in CSP. In addition, NRCS should allow the use of
other conservation programs to assist producers with meeting
comprehensive stewardship goals. Using other conservation programs will
shift some of the costs to these programs and more readily allow NRCS
to meet CSP acreage and funding requirements.
NRCS Response
No changes are made to the rule in response to the comments. The
policy related to the source of payments is designed to avoid
duplication of payment. When an enhancement is scheduled to be
completed in CSP through the CMT, the producer is receiving
compensation for the enhancement through their annual payment rather
than receiving a direct cost-share payment like they would through
EQIP. The statute prohibits payments to participants for new activities
that were applied with financial assistance through other USDA programs
on the same land.
If an applicant wishes to install conservation practices or
activities not included in the CSP contract, then other programs could
be used to assist producers meet their goals.
Comments
One commenter recommended that the rule explicitly exclude from the
CSP annual payment rate calculation, costs incurred for conservation
practices, or enhancements applied with financial assistance through
other USDA conservation programs.
NRCS Response
No changes are made to the rule in response to the comment.
Legislation states that the amount of conservation stewardship payment
will be determined and based, to the maximum extent practicable, on the
following factors:
(a) Cost incurred by the producer associated with planning, design,
materials, installation, labor, management, maintenance, or training;
(b) Income forgone by the producer; and
(c) Expected environmental benefits as determined by the CMT.
Comments
One commenter strongly encouraged NRCS to improve estimated payment
rates and clarify that CSP contracts can be modified to allow producers
to participate in other Title II Conservation Programs such as CRP,
EQIP, or WHIP.
NRCS Response
To manage CSP funding and meet legislative requirements, NRCS used
the 2009 application period to arrive at a uniform payment rate per
land use conservation performance point. NRCS modeled the annual land
use payment rates using the following nationwide sign-up data from the
2009 application period pre-approved applications:
(a) New and existing environmental benefits measured in
conservation performance points generated by land use type;
(b) Costs incurred and income foregone for conservation activities;
and
(c) Available program funding levels.
Land use payment rates represent the costs of existing and new
activities per performance point proportionally adjusted to manage
program payments to achieve the national average rate of $18 per acre.
Each case where a potential modification could be needed will be
evaluated in a case-by-case basis by the State to determine if contract
provisions are being met.
Legislation prohibits land to be enrolled in CRP, WRP, or GRP and
CSP at the same time. If a producer wants to transition out of the CSP
contract to another land retirement or working land preservation
program, the CSP contract will terminate with respect to the acres
enrolled in the other program. The annual payment for the land
remaining in CSP will be reduced in proportion to the acres removed.
It is also important to mention that CSP participants can
participate in EQIP or WHIP, but must ensure they follow agency policy
that prohibits the participants from receiving financial assistance
from more than one program on the same land for the same practice or
activity.
Public Information
Comments
One respondent addressed the need to keep the public informed. In
addition, it is essential that USDA keep participants and the public
informed on a regular basis about its payment rate findings during the
first ranking period. USDA is to be commended for its dedication to
making payments more consistent and predictable because these factors
will have a strong impact on future CSP participation rates, and most
importantly, achieving the conservation benefits desired by Congress.
NRCS Response
No changes are made to the rule in response to the comments. NRCS
agrees that it is critical to keep the participants and the public
informed of program information on a regular basis. NRCS continuously
posts information on the NRCS Home Page at http://www.nrcs.usda.gov to
ensure producers are informed and processes are transparent. NRCS has
posted a one-page ``Payment for Performance'' document to explain the
process used to establish the national payment rates. This information,
along with other important information related to the program, can be
found at http://www.nrcs.usda.gov/programs/new_csp/csp.html.
Fairness of Payments
Comments
Three respondents touched on the topic of fairness of CSP payments
between farmers. One expressed that some have spent years increasing
soil organic matter and nutrients, reducing soil erosion, and
increasing beneficial wildlife habitat with our own resources while
watching neighbors do just the opposite with intensive grain production
on erodible land and having USDA pay them a subsidy for their actions;
another expressed concern about huge sums of money for no-till planters
of corn in Iowa as being unfair to small struggling dairy farmers that
adopt practices that are much more sustainable in the long run; one
recommended NRCS should be paying farmers for producing healthier soil,
cleaner water, climate change mitigation, and greater bio-diversity
instead of an approach that encourages farmers to get bigger, faster,
better, and cheaper with little to no regard for the environmental
impacts they have.
NRCS Response
No changes are made to the rule in response to the comments. The
CSP provides an annual payment to contract holders for the combined
total of environmental benefits from existing and new activities.
Payments are not for specific conservation activities, instead
[[Page 31646]]
they are for the combined environmental benefits. The CMT calculated
conservation performance for existing and additional conservation
activities and benefits. It is computed by land use type for cropland,
pastureland, rangeland, and forest land. The tool is size neutral,
ensuring that all applicants regardless of the size or type of
operation have the same opportunity to earn similar points.
Establishing Payments
Comments
NRCS received 17 comments related to recommendations about how NRCS
should establish payment rates including setting the payment rate at
inordinately low levels perpetuates the ground being conventionally
cropped. NRCS should be emphasizing paying good stewards over poor
stewards who agree to do better; USDA should increase the payment
levels for cropland and pastureland. The 2009 estimated payment ranges
are not sufficient; using the first ranking period as a payment
discovery period was a good idea; and the preamble and rule do not
correspond. The preamble states ``This retrospective payment approach
will allow NRCS to field-verify applied conservation activities prior
to contract obligation and payment.'' No part of paragraph 1470.24,
references the same intent and procedure. A reference would clarify the
rule for NRCS employees and program participants.
Other comments included payment point values should be roughly
equivalent for ongoing organic management and new conversions or
transition to organic; encouragement to clarify exact payment levels
for satisfying particular resource concerns and for meeting other
resource concerns; and comments seeking information about exact
payments for program enrollment. Regarding the contract payments under
CSP, the majority of the payments should be dedicated to the base
contract payments rather than separate enhancement payment. Applicants
should be giving them priority points based on their conservation value
or effectiveness which would be added into the point total for the
contract which in turn would establish the per acre price.
NRCS Response
CSP does not provide payments for individual activities. Applicants
are ranked and paid based on the conservation performance points
generated by the environmental benefits produced by the existing and
new activities. NRCS has made information available at http://www.nrcs.usda.gov/programs/new_csp/csp.html.
Comments
For many landowners, the promise of CSP-generated income will not
be sufficient to prompt actions that advance conservation practices
that will meet resource concerns, including those for native and
managed pollinators. However, ``bundling'' of multiple values for the
multiple benefits that conservation practices provide, such as carbon
sequestration and water quality nutrient trading, is an approach that
offers considerable potential to generate a combined economic value to
landowners that will stimulate increased adoption and integration of
conservation practices into their operations. Support was expressed for
both types of payments to reward innovation and to advance new
conservation practices, particularly those that yield multiple
conservation outcomes. NRCS received comments that the CSP payment
should recognize the environmental benefits for adopting a practice not
only on the actual acres, but also the benefits gained on adjacent
agricultural or forest land.
NRCS Response
Environmental benefits are based on the actual amount of the
activity the producers agree to apply versus the potential of land that
could receive the treatment. It measures the environmental benefits
generated by the producer.
Comments
Four respondents recommended payments be based on environmental
outcomes.
NRCS Response
To be able to implement the program and meet legislative
requirements, the following three criteria were the driving factors for
establishing the payment rates:
(1) Contract payment by CMT point per land use fixed nationwide for
four eligible land uses: crop, pasture, range, forest;
(2) National average payment less than $18 per acre per year
(includes technical assistance and financial assistance); and
(3) Payment limitations.
CSP makes payments for conservation activities that benefit both
the landowner and community. The CSP program must be fair, equitable,
and accessible to all landowners and easy to administer by government
agencies. CSP cannot pay for all expenses incurred for conservation
activities, but CSP can offset some expenses. CSP encourages landowners
to maintain and adopt new conservation activities.
NRCS amended section 1470.20 to add paragraph (h) to read, ``NRCS
will conduct onsite field verification prior to contract obligation to
substantiate that the information provided by pre-approved applicants
during the application process is accurate prior to contract
obligation.''
Owners of Forest Lands
Comments
NRCS received three comments related to CSP payments and forest
landowners. The rules propose payments for on-farm research,
demonstration, and pilot testing. It is not clear if such payments are
also available to NIPF components. The National Association of State
Foresters recommends that forestry research and demonstration should
also be eligible for annual payments.
NRCS Response
No changes are made to the rule in response to the comments. On-
farm research and demonstrations and pilot projects are eligible for
cropland, pastureland, rangeland, and NIPF. The protocols for the
States to offer these activities can be found at http://www.nrcs.usda.gov/programs/new_csp/csp.html.
Comments
One commenter expressed that it would seem apparent that NIPF would
deserve the highest annual payment per acre to encourage people to
continue to invest time and labor to benefit our environment.
One commenter expressed concern that the low payment per acre and
no cost-share will also discourage participation, especially among
forest landowners.
NRCS Response
No changes are made to the rule in response to the comments. Land
use payment rates represent the composite costs of existing and new
activities per performance point proportionally adjusted to manage
program payments to achieve the national average rate of $18 per acre.
NRCS has supporting cost information to demonstrate that national
payment rates were established following the established process and
ensuring fairness with all land uses.
To manage CSP funding and meet legislative requirements, NRCS used
the 2009 application period to arrive at a uniform payment rate per
land use conservation performance point. NRCS modeled the annual land
use payment
[[Page 31647]]
rates using the following nationwide sign-up data from 2009 application
period pre-approved applications:
(a) New and existing environmental benefits measured in
conservation performance points generated by land use type;
(b) Costs incurred and income foregone for conservation activities;
and
(c) Available program funding levels.
Other
Comments
One commenter provided that the statement that no payment will be
made for which there is no cost incurred or income forgone by the
participant, is truly biased toward the individual who has in the past
raped the soil, and now wants to possibly change his ways if you pay
him enough. Not the spirit that CSP was intended to convey.
NRCS Response
No changes are made to the rule in response to the comment. NRCS is
following CSP authorizing language that provides that the amount of
conservation stewardship payment will be determined and based, to the
maximum extent practicable, on the following factors:
(a) Cost incurred by the producer associated with planning, design,
materials, installation, labor, management, maintenance, or training;
(b) Income forgone by the producer; and
(c) Expected environmental benefits as determined by the CMT.
Exclusions
SEC(e)(3)(B) payments to a producer will not be provided for
conservation activities for which there is no cost incurred or income
forgone to the producers.
Comments
One commenter recognized and applauded NRCS' effort to place the
dollars in the hands of the operator. This policy avoids creating
unnecessary angst within the farming communities.
NRCS Response
The CSP statutory authority requires that NRCS provide contract
holders payments to compensate for installing and adopting additional
conservation activities, and improving, maintaining, and managing
conservation activities in place on the operation of the producer at
the time the contract offer is accepted. NRCS has added clarity to the
rule in paragraph 1470.6(a).
Interaction With Subsidy Payments
Comments
NRCS received two comments regarding CSP and subsidy payments. One
commenter expressed that it is about time that we stop giving subsidies
to specific farmers on the basis of specific crops. We can ALL benefit
greatly if these subsidies were distributed instead on the basis of
their environmental effectiveness; and two, in no way should these
payments be added to the government's corn or grain subsidies obtained
by those who rent the land.
NRCS Response
NRCS is following statutory authority by providing contract holders
payments to compensate for installing and adopting additional
conservation activities, and improving maintaining, and managing
conservation activities in place at the operation of the producer at
the time the contract offer is accepted. The CSP payment is based on
environmental benefits accrued across the four major land uses
authorized by the program and is not crop specific.
Annual Payments
Comments
Commenters expressed a number of concerns related to annual
payments including that payment rates are too low and that low payment
rates push landowners towards less beneficial enhancements.
Additionally, the ability to receive cost-share assistance or use other
conservation programs to improve conservation systems is a disincentive
to participate in CSP, especially when combined with the low payment
rate; producers cannot determine their exact cost and benefit of
program participation if they are provided estimated annual payment
rates; payment rates for cropland, pastureland, and managed grazing
lands are too low; managed grazing land should be paid at the same rate
as cropland; and NIPF deserves the highest annual payment rate. NRCS
also heard that prompt payments are important to cover participant
expenses incurred in the preceding months.
NRCS Response
The CSP statute provides a maximum acreage enrollment and funding
level for each fiscal year. NRCS needed the payment discovery period,
described in the ``Discussion of Payment'' section, because no
historical information was available to be able to establish the rates
for performance points and still be able to meet the program
constraints. NRCS used real time data from the first sign-up to
establish the national payment rate per point by land use. It is NRCS'
intention to maintain, to the extent practicable, the per point payment
rates established for the first sign-up in future ranking periods. This
decision allows NRCS to provide estimated payment amounts to applicants
early in the application process.
To manage CSP funding and meet legislative requirements, NRCS used
the 2009 application period to arrive at a uniform payment rate per
land use conservation performance point. NRCS modeled the annual land
use payment rates using the following nationwide sign-up data from the
2009 application period:
(a) New and existing environmental benefits measured in
conservation performance points generated by land use type;
(b) Costs incurred and income foregone for conservation activities;
and
(c) Available program funding levels.
Note that land use payment rates represent the composite costs of
existing and new activities per performance point, proportionally
adjusted to manage program payments to achieve the national average
rate of $18 per acre.
CSP payments by statute are based on the costs associated with
agriculture on different land uses. In general, the costs associated
with the maintenance and enhancements on pastureland are lower than
those associated with cropland; therefore, the payment rate for
pastureland is lower.
The CSP statute establishes that the Secretary look at current
practices and future commitments to conservation. Historical changes to
agricultural operations were made for a multitude of personal,
financial, and cultural reasons. Although it is difficult to fairly
assess past actions, CSP payments are calculated based on existing
levels of conservation stewardship as well as a commitment to add
conservation. A grass based farm should score well for existing levels
of stewardship, and the CSP payment should reflect this.
NRCS has established that grassland, that is managed for hay or
haylage, is considered cropland. If the land is also grazed, a
determination must be made about which is the predominant activity,
haying or grazing. The predominant activity will determine the land use
category. If it is split evenly between the two activities the
applicant should decide which land use will be considered.
Although many commenters referenced payment rates in terms of
payment per acre, under CSP, participants are paid for operational
conservation performance--the higher
[[Page 31648]]
the performance, the higher their payment. It is inappropriate to refer
to the national payment rates on a per acre basis as the payments are
made for performance points, and they are unique for each operation.
NRCS clarifies that the estimated payment rates were made available to
applicants in the 2009 sign-up to provide a proxy of type of national
average payment that the program could offer. Additional information
related to payments can be located at http://www.nrcs.usda.gov/programs/new_csp/csp.html.
Regarding concerns related to prompt payments, NRCS will make
payments as soon as practicable after October 1 of each fiscal year for
activities carried out in the previous fiscal year. NRCS amends
1470.24(d), timing of payments, to add, ``For newly enrolled contracts,
payments will be made as soon as practicable after October 1 following
the fiscal year of enrollment.''
Supplemental Payments--Resource-Conserving Crop Rotation
Comments
NRCS received 5 comments on the topic of supplemental payments.
One commenter expressed the timely release of the rules for
implementation of and application for resource-conserving crop rotation
supplemental payments is very important, in particular for rice, which
is an irrigated crop. The Farm Bill says that the term resource-
conserving crop means, in part, a rotation that reduces soil-moisture
depletion or otherwise reduces the need for irrigation. With irrigation
being the essence of rice production, rice producers who apply for the
rotation supplement should not be disadvantaged in any way because they
must irrigate their rice crop. Prompt USDA determinations about what
rotations are beneficial and the definition of resource-conserving
crops, for purposes of this program component, would assist prospective
applicants in making informed, timely decisions about applying.
Another commenter recommended no supplemental payment will be made
until the crop rotation is installed.
NRCS Response
NRCS acknowledges the concerns and encourages producers to refer to
the activity criteria listed on the resource-conserving crop rotation
jobs sheet at http://www.nrcs.usda.gov/programs/new_csp/csp.html. In
addition, refer to the State Web site where eligible resource-
conserving crops are posted. NRCS understands the importance of this
under advisement for future ranking periods. However, the procedures
allow applicants to schedule the resource-conserving crop rotation when
the resource-conserving crop is planted on at least one-third of the
rotation acres. The resource-conserving crop must be adopted by the
third year of the contract and established or planted on all rotation
acres by the fifth year of the contract.
Comments
One commenter requested NRCS provide more than one resource
outcome, combined with the concept of supplemental payments.
Consideration should be given to resource-conserving crops that provide
nectar and pollen for native and managed pollinators. Alfalfa is a good
example, so long as the practice includes allowing the plants to bloom
and providing access to beekeepers.
NRCS Response
The benefits of a resource-conserving crop rotation include
protection and habitat for pollinators. A resource-conserving crop
rotation means a crop rotation that includes at least one resource-
conserving crop, and reduces wind and water erosion, increases soil
organic matter, improves soil fertility and tilth, interrupts pest
cycles, reduces depletion of soil moisture or reduces the need for
irrigation in applicable areas, and may provide protection and habitat
for pollinators.
Comments
Finally, one commenter expressed that the payment for a resource-
conserving crop rotation is inadequate to encourage change.
Payment Limitations
NRCS received 58 comments on the topic of payment limitations.
Although commenters expressed both support for and dissatisfaction with
payment limitations, more commenters supported the limitations than did
not.
One commenter expressed that section 1470.24(g) imposes an
arbitrary contract limit of $200,000 per contract regardless of the
number of producers involved in the farming operation covered by the
contract. This limit is outside the clear language of the statute and
will negatively impact commercial-size farming operations.
Thirty-two respondents stated that the CSP payment limits should be
retained and enforced. Many of these respondents also expressed that
NRCS should resist pleas to incorporate payment limitation loopholes.
One of the respondents expressed that USDA needs to ensure that as many
farmers as possible can access the program for the greatest
environmental benefit and farmers' bottom lines. Another respondent
recommended an addition to the rule to make CSP contracts and payments
subject to the FSA ``actively engaged in farming'' rules. One
respondent identified that payment limits should remain a separate
payment limitation and not be combined with other payments to encourage
more moderate sized farms to participate and keep the total cost of the
program at the limits of $40,000 per person or legal entity during any
fiscal year, and $200,000 over any 5-year period.
Conversely, NRCS received many comments expressing that the only
CSP payment limit the Farm Bill does declare explicitly is that
$200,000 is the amount that a person or legal entity may receive in the
aggregate, but may not exceed for all CSP contracts entered into during
any 5-year period. A limit on a CSP contract as proposed in the interim
final rule paragraph 1470.24 (g), is neither legislated in the Farm
Bill nor discussed in the Statement of Managers.
NRCS Response
NRCS follows the Commodity Credit Corporation (CCC) regulation in
7CFR part 1400 when applying its statutory payment limitation
requirements for CSP. This regulation is applicable to most CCC and FSA
commodity, price support, and conservation programs.
NRCS used 7 CFR part 1400 as a guide for establishing the CSP
contract limitation. A joint operation is composed by members who are
either persons or legal entities. Based on how joint operations are
characterized in section 1400.106, the statutory payment limitation
applies to each person or legal entity that comprises the joint
operation. NRCS recognizes the $200,000 contract limitation established
in the interim final rule was too low and unfairly restricted certain
joint operations who achieve the conservation performance levels needed
to earn the payments. Therefore, NRCS raises, in the final rule, the
CSP contract limitation to $400,000, which would allow two members of a
joint-tenancy operation to earn the payments to obtain their $200,000
per person payment limitation authorized in statute. Further, NRCS
establishes in paragraph (h) an annual contract limit for these joint
operations of up to $80,000. These payment limitations do not apply to
funding arrangements with federally recognized Indian tribes or Alaska
Native corporations.
[[Page 31649]]
Comments
Twenty-one respondents expressed concern about the payment limits.
NRCS received comments suggesting where CSP accepted farming
operations that exceed the $40,000 payment limit, NRCS should only
include the acres necessary to reach the $40,000 payment limit against
the State's allotted acres because the limit is understood and
acceptable to producers. There is no advantage to NRCS offering a
program that results in artificially low per acre contracts. If large
farms only consumed their proportional share of the allotted CSP acres,
large farms would present no threat to other operations. Large farms
offer tremendous value to the United States taxpayer by providing more
acres of conservation practices for the tax dollar. The current rule
could result in large farms avoiding CSP.
NRCS Response
No changes are made to the rule in response to the comments. NRCS
acknowledges the concern and explored this recommendation during the
payment discovery period. NRCS cannot limit the acres it considers
attributable to the authorized enrollment level. By statute, NRCS is
required to enroll in the program no more than 12,769,000 acres for
each fiscal year.
Comments
One respondent expressed that it is important to consider the
longer-term implication of the agency's decision to create program
provisions that run contrary to clear statutory language. If the agency
can create its own set of payment limitations in each regulation it
issues, the same overriding logic would allow it to impose its own set
of environmental requirements, or allow it to change or override clear
congressional guidelines with respect to expected environmental
benefits.
One commenter recommended program participants should be able to
roll over the annual payment limit for cause, so if they cannot
undertake the conservation activity in a given year, but shift that
work into the next year, the limit should be lifted if they request and
extension on the activity.
NRCS Response
NRCS will not make payments for individual activities, so an annual
payment amount will not be changed to adjust for actual performance. An
actual performance level below what is required in the contract is
considered a potential contract violation. Potential contract
violations are addressed with a formal contract review as per agency
policy in the Conservation Programs Manual, Part 512.55. In these
cases, the annual payments will not be issued until NRCS and the
applicant agree to a timeframe when the applicant will be back in
compliance with the contract provisions. This agreement is official
when form NRCS-CPA-153 has been signed by the participant and NRCS.
Statutory Acreage/Payment Constraints
Comments
NRCS received four comments on the statutory acreage and payment
constraints. One respondent stated that payment constraints should be
addressed in part by enrolling considerably more grassland than is
assumed by the economic analysis, but rather is more in keeping with
2009 applications by land-use type. Payment constraints should also be
addressed by allowing for year-to-year flexibility in meeting the
statutory average per-acre payment cap over the full 9-year period
provided by statute.
NRCS Response
No changes are made to the rule in response to the comments. NRCS
is not limiting the acres of grassland that enrolls in the program. The
amount projected in the economic analysis was used in lieu of
historical data for analytical purposes only. The analysis is being
reviewed with actual sign-up data which will reflect the amount of
pastureland that sign-up for the program. NRCS is offering fair payment
rates to encourage participation by operators of all land uses.
Comments
One respondent stated that as the level of CSP payments per acre is
relatively low (not to exceed an average of $18 per acre), we
anticipate that smaller acreage producers that might need to install a
more costly enhancement on their own will be discouraged from applying
for CSP because their expense to adopt some costlier enhancements (e.g.
conversion of cropland to native grass for wildlife, alternative water
sources, and exclusion fencing) may exceed their CSP payment. Thus, the
commenter recommends that producers be allowed to utilize programs
including EQIP and WHIP to help fund the installment of enhancements,
as long as they do not duplicate payments on lands enrolled in CSP.
NRCS Response
No changes are made to the rule in response to the comments. NRCS
recognizes the concerns related to small acreage producers.
Participants have an extensive menu of enhancements to choose from that
vary significantly in cost and environmental benefits. Although NRCS
will not allow producers to combine programs to help producers install
enhancements as that will be considered a duplicate payment, CSP
participants can participate and receive funds under EQIP providing
they do not receive payment for the same practice on the same land
under both programs.
Comments
One respondent stated that given that the 2008 Farm Bill set caps
on average payment rate and total acres, NRCS will need the flexibility
to make changes based on the real data that a sign-up would offer to
keep within the congressionally-set parameters.
NRCS Response
NRCS acknowledges the recommendation and will take under advisement
for future ranking periods. However, it is NRCS' intention to maintain
the per point payment rates in future ranking periods close to the same
that was used in the first sign-up. This should allow NRCS to tell
applicants early in their application process what their estimated
payment will be.
Comments
One respondent urged NRCS to attempt to keep the average cost per
acre for CSP down to $18 per acre ``to the extent practicable'' as
required by the statute.
NRCS Response
NRCS followed rigorous processes during the payment discovery
period to ensure payment rates were established based on sign-up data
and not to exceed legislative requirements. NRCS is currently
monitoring the contract obligation process, and program constraints are
being met. However, the States have not completed the obligation
process which may result in small variations of the expected results.
Minimum Contract Payment
Comments
NRCS received 55 comments expressing support that the final rule
incorporates a minimum payment. Of these 55 comments, 21 respondents
identified that the minimum payment should be at least $1,500. The
respondents asserted that a minimum payment would encourage
participation among small farms, especially among organic producers and
producers in the New England States. The respondents expressed that
small farms are important links in our ecological system. The
respondents were
[[Page 31650]]
concerned that without this minimum, there may be no incentive for
farmers operating at a scale smaller than 50-100 acres to take part in
the program. However, one of the respondents, while supporting the
$1,500 minimum payment, urged that the CSP payment limits in the
interim final rule be retained and enforced to prevent payment
limitation loopholes. NRCS also received comments that producers in
certain geographic locations, such as Hawaii, Guam, and Alaska would
potentially not participate in the program if the contract payment was
too low.
NRCS Response
Under the existing payment structure, payments consider the
environmental benefits produced on each acre. NRCS recognizes that
small scale operations, beginning farmers or ranchers, and limited
resource farmers or ranchers could be discouraged from participating,
as well as producers in certain geographic locations and those who have
been historically underserved. NRCS intends to encourage conservation
on all agriculture operations regardless of size or type of operation,
including organic production systems. NRCS is seeking CSP regulatory
provisions to more directly encourage participation of small-scale
producers, socially disadvantaged farmers or ranchers, beginning
farmers or ranchers, and limited resource farmers or ranchers. NRCS
believes that participation by these agricultural producers will
provide for more conservation assistance for those who traditionally
have not participated in USDA programs, as well as beginning farmers or
ranchers seeking assistance with their operations.
Therefore, NRCS modified the rule in 1470.24 to add a new paragraph
(d) that provides authority for minimum contract payments to socially
disadvantaged farmers or ranchers, beginning farmers or ranchers, and
limited resource farmers or ranchers. Paragraph (d) now reads,
``Minimum contract payment. NRCS will make a minimum contract payment
to participants who are socially disadvantaged farmers or ranchers,
beginning farmers or ranchers, or limited resource farmers or ranchers
at a rate determined by the Chief in any fiscal year that a contract's
payment amount total is less than $1,000.''
Section 1470.25 Contract Modifications and Transfers of Land
Comments
NRCS received ten comments on the topic of contract modifications
and transfers of land.
NRCS received several comments in support of the provisions in the
interim final rule. One commenter supported the interim final rule
regarding NRCS' ability to modify, renew, and terminate contracts found
in Sec. 1470.25, Sec. 1470.26, and Sec. 1470.27. Another commenter
supported the ability to transfer all or portions of the CSP contract
if land is transferred or control of land changes. NRCS may wish to
allow 90 days rather than 60 days to accomplish the transfer to ensure
transfers are completed. However, another commenter expressed that the
proposed rule provides for no contract modifications. Farm operations
are dynamic organizations, and provisions should be allowed for the
addition of qualifying land during the contract period. The other
option would be to allow producers to enter into separate contracts for
land added to the farm operation subsequent to an initial contract.
NRCS Response
NRCS chooses to retain the 60 days to accomplish the transfer to be
consistent with other NRCS programs' contract prohibitions. NRCS has
determined that although participants cannot modify contracts to add
lands after a contract has been approved due to complexities related to
ranking and payment rates, participants may offer new applications for
additional lands they acquire after the initial contract is approved.
The application on the newly acquired land will have to compete against
other lands being offered for the program at the same time.
Comments
One commenter expressed that section 1470.25(b) prohibits
modifications that increase the contract obligation over the initial
amount with the exception of contracts that are renewed after the 5-
year period. This prohibition has no basis in statute, and it is
unclear why NRCS would want to prohibit contract modifications that
increase the initial obligation as long as the increase is within the
overall person or entity cap of $200,000.
NRCS Response
NRCS has amended the rule to allow participants who expand their
farming operation to submit new applications for additional contracts
on the newly acquired acreage. Any new application will have to compete
with other applications received during the same ranking period. This
policy enables producers to participate in CSP on newly acquired land
while maintaining the integrity of the ranking and payment process.
Comments
Two commenters strongly encouraged NRCS to not penalize producers
for amending their contract to enroll sensitive lands in other Title II
Conservation Programs such as CRP, GRP, or WRP. Another recommended
clarifying that CSP contracts can be modified to allow producers to
enroll land into other conservation programs and payments should be
modified to reflect the producers' costs and the environmental benefits
gained on the entire field.
NRCS Response
NRCS agrees with the commenters and amended the final rule in
paragraph 1470.25 to allow modifications to contracts to cancel and
remove contract acres enrolled in programs like CRP, GRP, WRP, or other
similar Federal or State programs without penalty to the participant.
Comments
One commenter recommended when renewable energy facilities and
infrastructure are built on existing CSP contracts, the contract should
be modified to address acres impacted by earthmoving and construction
activities. These activities change the intent and purpose of the CSP
contract.
NRCS Response
NRCS agrees with the commenter. NRCS will consider taking land out
of production in a potential non-compliance situation. State
Conservations will evaluate these cases individually and decide if
contract termination is needed or if a modification of contract acres
is permitted to allow the producer to maintain the contract with the
reduced acres.
Section 1470.26 Contract Renewal
Comments
NRCS received nine comments on the topic of contract renewal. One
commenter supported the interim final rule regarding NRCS' ability to
modify, renew, and terminate contracts found in Sec. 1470.25, Sec.
1470.26, and Sec. 1470.27.
NRCS Response
NRCS appreciated the positive feedback.
[[Page 31651]]
Comments
NRCS received a comment that it should be much clearer and more
explicit in the final rule. As a condition of eligibility for renewal,
the participant should be required to meet or exceed the stewardship
threshold for at least two additional priority resource concerns during
the second contract term, provided they are not already exceeding the
threshold for all or at least four priority resource concerns. In
addition, the requirement to adopt additional conservation activities
should be tied directly to the requirement to meet or exceed the
threshold on those additional priority resource concerns.
NRCS Response
NRCS intends to follow the Managers' Report language that provides,
``The Secretary is provided authority to require new conservation
activities as part of the contract renewal process. It is the intent of
the Managers that this could include expanding the degree, scope, and
comprehensiveness of conservation activities adopted by a producer to
address the original priority resource concerns or addressing one or
more additional priority resource concerns.'' To add clarity to the
rule, NRCS amends paragraphs 1470.26(b)(3) and (4) to read as follows:
``(3) At a minimum, meet stewardship thresholds for at least two
priority resource concerns; and (4) agree to adopt additional
conservation activities to address at least one additional priority
resource concern during the term of the renewed conservation
stewardship contract.''
Comments
One respondent identified that section 1470.26 of the interim final
rule provides that NRCS will permit contract renewals to foster
participant commitment to increased conservation performance. The
commenter believes that payment for implementing additional
conservation activities should be equally weighted with payment for
implementing existing conservation activities.
NRCS Response
NRCS established the National Payment Rates which include the
conservation performance for existing and new activities. It
anticipates it will maintain the same payment structure on renewed
contracts.
Comments
One commenter supported the idea of contract renewals. Some
practices take years of implementation before you actually see
financial results. When transitioning to no-till farming practices in
semi-arid Montana, it takes between 7 and 10 years before the nutrient
requirements stabilize and the producer is able to reduce the amount of
fertilizer that is required. Assisting farmers and ranchers with
additional time to implement larger practices can only serve to help
the meet the goals of CSP and improve our environment.
NRCS Response
NRCS agrees with the commenter. Contract renewal will ensure that
conservation benefits achieved in the first period will be maintained
longer. In addition, this will allow participants to adopt new
conservation activities and address additional stewardship thresholds.
No change is made to the rule in response to the comment.
Section 1470.27 Contract Violations and Termination
Comments
Section 1470.27, ``Contract violations and termination,'' addresses
the procedures that NRCS will take when a violation has occurred or a
contract termination is needed. NRCS received four comments on this
section.
One commenter recommended NRCS remove the penalty for terminating
the CSP contract before the 5 years is done. The environment will reap
a benefit from even just one year of CSP enrollment and conservation
practices. We should be trying to encourage participation rather than
instilling fear of repercussions.
NRCS Response
NRCS will follow agency contracting policies to be consistent with
other NRCS programs and ensure program objectives are met. However,
NRCS will not penalize a participant if they failed to comply with
contract provisions due to circumstances beyond their control.
Comments
One commenter requested NRCS include verbiage that specifically
says the landowner will not be held liable in any manner if their
tenant does not fulfill the 5-year contract. This would encourage
landowners to cooperate with tenants who want to do good things for the
environment.
NRCS Response
NRCS does not consider it appropriate to include the language
recommended above as NRCS may not have any contractual obligations with
the landlords. NRCS enters into a contract with the applicant who is
held responsible for meeting the contract provisions. NRCS has
provisions that explain that participants will not be considered in
violation of the contract for failure to comply with the contract due
to circumstances beyond the control of the participant. In addition,
NRCS will ensure that producers who would have an interest in acreage
being offered received treatment which NRCS deems to be equitable.
Subpart C--General Administration
Section 1470.30 Fair Treatment of Tenants and Sharecroppers
Comments
Section 1470.30, ``Fair treatment of tenants and sharecroppers,''
specifies that any CSP payments received must be divided in the manner
specified in the contract. Where conflicts arise between an operator
and landowner, NRCS may refuse to enter into a CSP contract. NRCS
received two comments on this section.
One commenter expressed that tenant and sharecropper treatment must
be a priority and communicated clearly and frequently to applicants and
participants during every phase of the CSP process. In particular, USDA
must clearly and frequently communicate to applicants and participants
the interim final rule statement, i.e., that the Department may refuse
to enter into a CSP contract when there is a disagreement amongst joint
applicants seeking enrollment as to an applicant's eligibility to
participate in the contract as a tenant.
NRCS Response
NRCS does not want to interfere with the contractual relationship
between landowners and tenants. However, NRCS has a responsibility to
ensure fair treatment of tenants. NRCS feels that this concern has been
addressed in the program contract appendix which is given to the
applicants at the time of application and reviewed, accepted, and
signed before contract obligation. The contract appendix provides that:
No payment will be approved for the current year if the CCC
determines that any of the following conditions exist: (1) The landlord
or operator has not given the tenants that have an interest in the
agricultural operation covered by the contract, or that have a lease
that runs through the contract term at the time of sign-up, an
opportunity to participate in the benefits of the program, and (2) The
landlord or operator has adopted any other scheme or device for the
purpose of depriving any tenant of any benefits to which such tenant
would otherwise be entitled. If any such conditions occur or are
discovered after payments have
[[Page 31652]]
been made, all or any part of the payments, as determined by the CCC,
must be refunded according to paragraph 5F of the contract, and no
further payments will be made.
Comments
The second commenter recommended NRCS adopt additional procedures
to be sure that the contracts themselves provide fair treatment to
tenants, and that landowners be required to disclose any operators on
the land who may be farming on the land covered under CSP who lack
adequate written lease agreements.
NRCS Response
NRCS accepts applications from the operator of record in the FSA
farm records management system. Exceptions may be made for other
tenants, other producers, and owners in the FSA farm records management
system that can demonstrate, to the satisfaction of NRCS, they are the
operator and have effective control of the land at the time of
enrollment in the program. This should ensure that the contracts
provide for fair treatment of tenants.
Section 1470.31 Appeals
No comments were received.
Section 1470.32 Compliance With Regulatory Measures
No comments were received.
Section 1470.33 Access to Operating Unit
NRCS received three comments regarding access to operating unit.
One commenter requested USDA inform and make clearly available notices
in its national, State, and local offices during public outreach
activities, and during prospective applicants' and active participants'
meetings, that its authorized representatives have certain limited
rights to enter a private agricultural operation solely for CSP-related
purposes. The interim final rule statement that NRCS will make every
effort to contact the participant prior to the exercise of this
provision must be honored and fulfilled to the fullest extent. Every
effort to make prior contact must be documented and logged, using
permissible and appropriate means of communication. Two commenters
recommended that the right to access be extended to any representative
of USDA, as in other USDA regulations. This will allow conservation
partners with TSP agreements to assist with applications and
conservation planning on the applications land.
NRCS Response
NRCS supports the comment and has inserted ``or its authorized
representative'' after ``NRCS'' where appropriate within this section
of the rule.
Section 1470.34 Equitable Relief
No comments were received.
Section 1470.35 Offsets and Assignments
No comments were received.
Section 1470.36 Misrepresentation and Scheme or Device
No comments were received.
Section 1470.37 Environmental Credits for Conservation Improvements
Section 1470.37, ``Environmental credits for conservation
improvements,'' provides NRCS' policy on environmental credits. NRCS
received five comments on this section.
Two commenters were encouraged to see the provisions included on
environmental credits and support the policy that any environmental
credits (for example carbon or water quality) created in conjunction
with a CSP contract are solely the property of the contract holder.
This is consistent with policy statements made by USDA in reference to
EQIP and CRP.
NRCS Response
NRCS appreciates the positive feedback. It is correct that the
policy on this issue with respect to CSP is consistent with many other
USDA programs. Although such assistance may favor program participants
at the expense of non-participants, this stance is based on the
Department's desire to foster the creation of credits to spur the
supply side of these markets.
Comments
One commenter expressed that although NRCS is asserting no interest
in the credits that may be generated due to participation in CSP, it is
possible that the rules of an ecosystem services market may preclude
the purchase of credits that may have already been partially funded by
the taxpayer. In almost all cases, it is highly likely that NRCS has
only financed the creation of a portion of the credits that may be
generated by an operation, and that a large percentage of the potential
ecosystem service credit is being generated through ongoing labor and
investment on the part of the farm operator. It would help ensure the
ability of all USDA conservation program participants to sell ecosystem
services credits in any ecosystem services market if USDA would
calculate what portion of the potential credit they have financed and
what portion remains that could be sold into an ecosystem services
market. This would create more stability and assurance for producers
who wish to participate in these markets.
NRCS Response
USDA recognizes and respects the rights for markets to establish
their own technical and trading requirements for market participants.
The rationale for precluding environmental credits generated by
taxpayer-assisted programs is that these markets only want to recognize
``additional'' credits produced without tax-payer assistance. These
markets would contend that credits generated through such programs
would have been produced regardless of the presence of an environmental
market and in fact, could affect the decision of non-program
participants to create and enter into environmental markets. Measuring
the degree of distortion created by tax-payer assistance programs to
extricate its portion of the credits due to their influence would add
another level of complexity to these emerging markets.
Comments
One commenter supported the provision of the regulation regarding
environmental credits for conservation improvements. It is important
the conservation program participants be able to participate in future
ecosystem services markets regardless of whether they have or have not
participated in Federal conservation programs.
NRCS Response
USDA supports the creation of environmental markets and does not
directly affect the decision of program participants to participate in
them.
Comments
One commenter recommended NRCS provide additional weight to
projects that acreage CSP program goals while concurrently facilitating
emerging environmental credit markets (i.e. those projects that are
well-tailored to resulting in the production of marketable climate and
water quality credits). In addition to meeting program goals, these
projects will meet the administration's goal for fostering economic
stimulus through enhanced markets in ecosystem services.
NRCS Response
The CSP has the potential to address specific resource concerns by
allowing the State Technical Committee to select
[[Page 31653]]
the priority resource concerns in their State. Also, although NRCS
recognizes that there may be substantial indirect impacts on local
economies and employment, NRCS' primary objective is to put
conservation on the ground.
Other Regulatory Changes
NRCS made the following administrative changes to add clarity to
the rule:
(1) Text related to funding reserves for Socially Disadvantaged
Farmers or Ranchers and Beginning Farmers or Ranchers was removed from
paragraph 1470.2(e) and relocated more appropriately under 1470.4,
Allocation and Management;
(2) Paragraphs 1470.2(f)(1)(i) through (iii) were added to place
responsibilities of the State Technical Committees and local working
groups in one location within the rule.
(3) Paragraph 1470.4(e) was added to include a statutory
requirement to identify that CSP may contribute to the Cooperative
Conservation Partnership Initiative (CCPI). CCPI provides that, for the
funds available for CCPI, 90 percent will be allocated for projects
selected at the State level and 10 percent for projects offered through
a national competitive process. For the percentage of funds allocated
based on a national competitive process, this regulation identifies
that funding allocation decisions will consider the extent to which the
project addresses national and regional conservation priorities.
(4) Paragraph 1470.3 includes a new definition for limited resource
farmer and rancher for consistency with other NRCS regulations.
(5) Outreach--in paragraph 1470.5(b), deleted redundant text and
added paragraph 1470.5(d) clarifying that NRCS will conduct focused
outreach in regions of national significance in order to maximize
program participation.
(6) Paragraph 1470.6(b)(4) was amended to provide clarification to
``other eligible lands'' to include ``other private agricultural land
as determined by the Chief, on which resource concerns related to
agricultural production could be addressed by enrolling the land in
CSP.''
(7) The text in paragraph 1470.20(e), Application, was deleted and
relocated to ``Administration'' to keep reference to administrative
functions in one location. A new paragraph (e) has been added regarding
State and local priorities.
(8) Paragraph 1470.24(e) clarified the timing of payments for newly
enrolled contracts. In paragraph (i) clarified payment limitation
provisions for Indian tribes, Pueblos, and Indian nations. In paragraph
(j) clarified that payments will be directly attributed to entity
members.
List of Subjects in 7 CFR Part 1470
Agricultural operation, Conservation activities, Conservation
measurement tool, Natural resources, Priority resource concern,
Stewardship threshold, Resource-conserving crop rotation, Soil and
water conservation, Soil quality, Water quality and water conservation,
Wildlife and forest management.
0
For the reasons stated above, the CCC adds part 1470 of Title 7 of the
CFR to read as follows:
PART 1470--CONSERVATION STEWARDSHIP PROGRAM
Subpart A--General Provisions
Sec.
1470.1 Applicability.
1470.2 Administration.
1470.3 Definitions.
1470.4 Allocation and management.
1470.5 Outreach activities.
1470.6 Eligibility requirements.
1470.7 Enhancements and conservation practices.
1470.8 Technical and other assistance.
Subpart B--Contracts and Payments
1470.20 Application for contracts and selecting offers from
applicants.
1470.21 Contract requirements.
1470.22 Conservation stewardship plan.
1470.23 Conservation activity operation and maintenance.
1470.24 Payments.
1470.25 Contract modifications and transfers of land.
1470.26 Contract renewal.
1470.27 Contract violations and termination.
Subpart C--General Administration
1470.30 Fair treatment of tenants and sharecroppers.
1470.31 Appeals.
1470.32 Compliance with regulatory measures.
1470.33 Access to agricultural operation.
1470.34 Equitable relief.
1470.35 Offsets and assignments.
1470.36 Misrepresentation and scheme or device.
1470.37 Environmental credits for conservation improvements.
Authority: 16 U.S.C. 3838d-3838g.
Subpart A--General Provisions
Sec. 1470.1 Applicability.
(a) This part sets forth the policies, procedures, and requirements
for the Conservation Stewardship Program (CSP) as administered by the
Natural Resources Conservation Service (NRCS), for enrollment during
fiscal year (FY) 2009 and thereafter.
(b) The purpose of CSP is to encourage producers to address
resource concerns in a comprehensive manner by:
(1) Undertaking additional conservation activities; and
(2) Improving, maintaining, and managing existing conservation
activities.
(c) CSP is applicable in any of the 50 States, District of
Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands of the
United States, American Samoa, and Commonwealth of the Northern Mariana
Islands.
(d) NRCS provides financial assistance and technical assistance to
participants for the conservation, protection, and improvement of soil,
water, and other related natural resources, and for any similar
conservation purpose as determined by NRCS.
Sec. 1470.2 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief, NRCS, who is a Vice
President of the Commodity Credit Corporation (CCC).
(b) The Chief is authorized to modify or waive a provision of this
part if the Chief deems the application of that provision to a
particular limited situation to be inappropriate and inconsistent with
the purposes of the program. This authority cannot be further
delegated. The Chief may not modify or waive any provision of this part
which is required by applicable law.
(c) To achieve the conservation goals of CSP, NRCS will:
(1) Make the program available nationwide to eligible applicants on
a continuous application basis with one or more ranking periods to
determine enrollments. One of the ranking periods will occur in the
first quarter of each fiscal year, to the extent practicable; and
(2) Develop conservation measurement tools (CMT) for the purpose of
carrying out the program.
(d) During the period beginning on October 1, 2008, and ending on
September 30, 2017, NRCS will, to the maximum extent practicable:
(1) Enroll in CSP an additional 12,769,000 acres for each fiscal
year; and
(2) Manage CSP to achieve a national average rate of $18 per acre,
which includes the costs of all financial and technical assistance and
any other expenses associated with program enrollment and
participation.
(e) The State Conservationist will:
(1) Obtain advice from the State Technical Committee and local
working groups on the development of State-level technical, outreach,
and program matters, including:
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(i) Establishment of ranking pools appropriate for the conduct of
CSP within the State to ensure program availability and prioritization
of conservation activities. Ranking pools may be based on watersheds,
geographic areas, or other appropriate regions within a State and may
consider high-priority regional and State-level resource concern areas;
(ii) Identification of not less than three, nor more than five
priority resource concerns in particular watersheds, geographic areas,
or other appropriate regions within a State;
(iii) Identification of resource-conserving crops that will be part
of resource-conserving crop rotations;
(iv) Development of design protocols and participation procedures
for participation in on-farm research, and demonstration and pilot
projects; and
(v) Evaluation of Cooperative Conservation Partnership Initiative
(CCPI) projects and allowable program adjustments for the conduct of
projects.
(2) Assign NRCS employees as designated conservationists to be
responsible for CSP at the local level; and
(3) Be responsible for the program in their assigned State.
(f) NRCS may enter into agreements with Federal, State, and local
agencies, conservation districts, Indian tribes, private entities, and
individuals to assist NRCS with program implementation.
Sec. 1470.3 Definitions.
The following definitions will apply to this part and all documents
issued in accordance with this part, unless specified otherwise:
Agricultural land means cropland, rangeland, and pastureland on
which agricultural products or livestock are produced and resource
concerns may be addressed. Agricultural lands may also include other
land and incidental areas included in the agricultural operation as
determined by NRCS. Other agricultural lands include cropped woodland,
marshes, incidental areas included in the agricultural operation, and
other types of agricultural land used for production of livestock.
Agricultural operation means all agricultural land and other land,
as determined by NRCS, whether contiguous or noncontiguous:
(1) Which is under the effective control of the applicant; and
(2) Which is operated by the applicant with equipment, labor,
management, and production or cultivation practices that are
substantially separate from other operations.
Animal waste storage or treatment facility means a structural
conservation practice used for storing or treating animal waste.
Applicant means a person, legal entity, joint operation, or Indian
tribe that has an interest in an agricultural operation, as defined in
7 CFR part 1400, who has requested in writing to participate in CSP.
Beginning farmer or rancher means:
(1) An individual or legal entity who:
(i) Has not operated a farm, ranch, or nonindustrial private forest
land (NIPF), or who has operated a farm, ranch, or NIPF for not more
than 10 consecutive years (this requirement applies to all members of a
legal entity); and
(ii) Will materially and substantially participate in the operation
of the farm or ranch.
(2) In the case of a contract with an individual, individually, or
with the immediate family, material and substantial participation
requires that the individual provide substantial day-to-day labor and
management of the farm or ranch, consistent with the practices in the
county or State where the farm is located.
(3) In the case of a contract with a legal entity or joint
operation, all members must materially and substantially participate in
the operation of the farm or ranch. Material and substantial
participation requires that each of the members provide some amount of
the management or labor and management necessary for day-to-day
activities, such that if each of the members did not provide these
inputs, operation of the farm or ranch would be seriously impaired.
Chief means the Chief of NRCS, or designee.
Conservation activities means conservation systems, practices, or
management measures needed to address a resource concern or improve
environmental quality through the treatment of natural resources, and
includes structural, vegetative, and management activities as
determined by NRCS.
Conservation district means any district or unit of State, tribal,
or local government formed under State, tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government may be
referred to as a ``conservation district,'' ``soil conservation
district,'' ``soil and water conservation district,'' ``resource
conservation district,'' ``land conservation committee,'' ``natural
resource district,'' or similar name.
Conservation measurement tool means procedures developed by NRCS to
estimate the level of environmental benefit to be achieved by a
producer using the proxy of conservation performance.
Conservation planning means using the planning process outlined in
the applicable National Planning Procedures Handbook (NPPH).
Conservation practice means a specified treatment, such as a
structural or vegetative practice or management technique, commonly
used to meet a specific need in planning and carrying out conservation
programs for which standards and specifications have been developed.
Conservation practices are in the NRCS Field Office Technical Guide,
section IV, which is based on the National Handbook of Conservation
Practices.
Conservation stewardship plan means a record of the participant's
decisions that describes the schedule of conservation activities to be
implemented, managed, or improved. Associated supporting information
that identifies and inventories resource concerns and existing
conservation activities, establishes benchmark data, and documents the
participant's conservation objectives will be maintained with the plan.
Conservation system means a combination of conservation practices,
management measures, and enhancements used to address natural resource
and environmental concerns in a comprehensive, holistic, and integrated
manner.
Contract means a legal document that specifies the rights and
obligations of any participant who has been accepted into the program.
A CSP contract is an agreement for the transfer of assistance from NRCS
to the participant for installing, adopting, improving, managing, and
maintaining conservation activities.
Designated conservationist means an NRCS employee whom the State
Conservationist has designated as responsible for CSP at the local
level.
Effective control means possession of the land by ownership,
written lease, or other legal agreement and authority to act as
decisionmaker for the day-to-day management of the operation both at
the time the applicant enters into a stewardship contract and for the
required period of the contract.
Enhancement means a type of conservation activity used to treat
natural resources and improve conservation performance. Enhancements
are installed at a level of management intensity that exceeds the
sustainable level for a given resource concern, and those enhancements
directly related to a practice standard are applied in a manner that
exceeds the
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minimum treatment requirements of the standard.
Enrollment means for the initial sign-up for FY 2009, NRCS will
consider a participant ``enrolled'' in CSP based on the fiscal year the
application is submitted, once NRCS approves the participant's
contract. For subsequent ranking cut-off periods, NRCS will consider a
participant enrolled in CSP based on the fiscal year the contract is
approved.
Field office technical guide means the official local NRCS source
of resource information and interpretations of guidelines, criteria,
and standards for planning and applying conservation practices and
conservation management systems. It contains detailed information on
the conservation of soil, water, air, plant, and animal resources
applicable to the local area for which it is prepared.
Indian lands means all lands held in trust by the United States for
individual Indians or Indian tribes, or all land titles held by
individual Indians or tribes, subject to Federal restrictions against
alienation or encumbrance, or lands subject to the rights of use,
occupancy, or benefit of certain Indian tribes. This term also includes
lands for which the title is held in fee status by Indian tribes and
the U.S. Government-owned land under the Bureau of Indian Affairs (BIA)
jurisdiction.
Indian Tribe means any Indian tribe, band, nation, pueblo, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.),
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Joint operation means, as defined in part 1400 of this chapter, a
general partnership, joint venture, or other similar business
arrangement in which the members are jointly and severally liable for
the obligations of the organization.
Legal entity means, as defined in part 1400 of this chapter, an
entity created under Federal or State law.
Limited Resource Farmer or Rancher means:
(1) A person with direct or indirect gross farm sales not more than
the current indexed value in each of the previous 2 years ($142,000 is
the amount for 2010, adjusted for inflation using Prices Paid by Farmer
Index as compiled by the National Agricultural Statistical Service);
and
(2) Has a total household income at or below the national poverty
level for a family of four, or less than 50 percent of county median
household income in each of the previous 2 years (to be determined
annually using Department of Commerce Data).
Liquidated damages means a sum of money stipulated in the CSP
contract that the participant agrees to pay NRCS if the participant
fails to fulfill the terms of the contract. The sum represents an
estimate of the technical assistance expenses incurred to service the
contract, and reflects the difficulties of proof of loss and the
inconvenience or non-feasibility of otherwise obtaining an adequate
remedy.
Local working group means the advisory body as described in 7 CFR
part 610.
Management measure means one or more specific actions that is not a
conservation practice, but has the effect of alleviating problems or
improving the treatment of the natural resources.
National Organic Program means the program, administered by the
Department of Agriculture (USDA) Agricultural Marketing Service, which
regulates the standards for any farm, wild crop harvesting, or handling
operation that wants to market an agricultural product as organically
produced.
Natural Resources Conservation Service means an agency of USDA
which has responsibility for administering CSP using the funds,
facilities, and authorities of the CCC.
Nonindustrial private forest land means rural land that has
existing tree cover or is suitable for growing trees, and is owned by
an individual, group, association, corporation, Indian tribe, or other
private legal entity that has definitive decisionmaking authority over
the land.
Operation and maintenance means work performed by the participant
to maintain existing conservation activities to at least the level of
conservation performance identified at the time the application is
obligated into a contract, and maintain additional conservation
activities installed and adopted over the contract period.
Participant means a person, legal entity, joint operation, or
Indian tribe that is receiving payment or is responsible for
implementing the terms and conditions of a CSP contract.
Payment means financial assistance provided to the participant
under the terms of the CSP contract.
Person means, as defined in part 1400 of this chapter, an
individual, natural person and does not include a legal entity.
Priority resource concern means a resource concern that is
identified by the State Conservationist, in consultation with the State
Technical Committee and local working groups, as a priority for a
State, or the specific geographic areas within a State.
Producer means a person, legal entity, joint operation, or Indian
tribe who has an interest in the agricultural operation, as defined in
part 1400 of this chapter, or who is engaged in agricultural production
or forest management.
Resource concern means a specific natural resource problem that is
likely to be addressed successfully through the implementation of
conservation activities by producers.
Resource-conserving crop means a crop that is one of the following:
(1) A perennial grass;
(2) A legume grown for use as forage, seed for planting, or green
manure;
(3) A legume-grass mixture;
(4) A small grain grown in combination with a grass or legume,
whether inter-seeded or planted in rotation.
Resource-conserving crop rotation means a crop rotation that:
(1) Includes at least one resource-conserving crop as determined by
the State Conservationist;
(2) Reduces erosion;
(3) Improves soil fertility and tilth;
(4) Interrupts pest cycles; and
(5) In applicable areas, reduces depletion of soil moisture or
otherwise reduces the need for irrigation.
Secretary means the Secretary of USDA.
Socially disadvantaged farmer or rancher means a producer who has
been subjected to racial or ethnic prejudices because of their identity
as a member of a group without regard to their individual qualities. A
socially disadvantaged group is a group whose members have been subject
to racial or ethnic prejudice because of their identity as members of a
group, without regard to their individual qualities. These groups
consist of American Indians or Alaskan Natives, Asians, Blacks or
African Americans, Native Hawaiians or other Pacific Islanders, and
Hispanics. A socially disadvantaged applicant is an individual or
entity who is a member of a socially disadvantaged group. For an
entity, at least 50 percent ownership in the farm business must be held
by socially disadvantaged individuals.
State Conservationist means the NRCS employee authorized to
implement CSP and direct and supervise NRCS activities in a State,
Caribbean Area, or Pacific Islands Area.
[[Page 31656]]
State Technical Committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861.
Stewardship threshold means the level of natural resource
conservation and environmental management required, as determined by
NRCS using the CMT, to conserve and improve the quality and condition
of a natural resource.
Technical assistance means technical expertise, information, and
tools necessary for the conservation of natural resources on land
active in agricultural, forestry, or related uses. The term includes
the following:
(1) Technical services provided directly to farmers, ranchers,
forest producers, and other eligible entities, such as conservation
planning, technical consultation, preparation of forest stewardship
management plans, and assistance with the design and implementation of
conservation activities; and
(2) Technical infrastructure, including processes, tools, and
agency functions needed to support delivery of technical services, such
as technical standards, resource inventories, training, data,
technology, monitoring, and effects analyses.
Technical Service Provider means an individual, private-sector
entity, or public agency certified by NRCS to provide technical
services to program participants in lieu of, or on behalf of, NRCS as
referenced in 7 CFR part 652.
Sec. 1470.4 Allocation and management.
(a) The Chief will allocate acres and associated funds to State
Conservationists:
(1) Primarily on each State's proportion of eligible land to the
total amount of eligible land in all States; and
(2) On consideration of:
(i) The extent and magnitude of the conservation needs associated
with agricultural production in each State based on natural resource
factors that consider national, regional, and State-level priority
ecosystem areas,
(ii) The degree to which implementation of the program in the State
is, or will be, effective in helping producers address those needs, and
(iii) Other considerations determined by the Chief to achieve
equitable geographic distribution of program participation.
(b) The State Conservationist will allocate acres to ranking pools,
to the extent practicable, based on the same factors the Chief
considers in making allocations to States.
(c) Of the acres made available for each of fiscal years 2009
through 2012 to carry out CSP, NRCS will use, as a minimum:
(1) Five percent to assist beginning farmers or ranchers, and
(2) Five percent to assist socially disadvantaged farmers or
ranchers.
(d) In any fiscal year, allocated acres that are not enrolled by a
date determined by NRCS may be reallocated with associated funds for
use in that fiscal year under CSP. As part of the reallocation process,
NRCS will consider several factors, including demand from applicants,
national and regional conservation priorities, and prior-year CSP
performance in States.
(e) Of the CSP funds and acres made available for each fiscal year:
(1) The Chief will reserve 6 percent of funds and acres to ensure
an adequate source of funds and acres for the CCPI. Of the funds and
acres reserved, the Chief will allocate:
(i) Ninety percent to projects based on the direction of State
Conservationists, with the advice of State Technical Committees; and
(ii) Ten percent to projects based on a national competitive
process established by the Chief. In determining funding allocation
decisions for these projects, NRCS will consider the extent to which
they address national and regional conservation priorities.
(2) Any funds and acres reserved for the CCPI in a fiscal year that
are not obligated by April 1 of that fiscal year may be used to carry
out other CSP activities during the remainder of that fiscal year.
Sec. 1470.5 Outreach activities.
(a) NRCS will establish program outreach activities at the
national, State, and local levels to ensure that potential applicants
who control eligible land are aware and informed that they may be
eligible to apply for program assistance.
(b) Special outreach will be made to eligible producers with
historically low participation rates, including but not restricted to,
beginning farmers or ranchers, limited resource farmers or ranchers,
and socially disadvantaged farmers or ranchers.
(c) NRCS will ensure that outreach is provided so as not to limit
producer participation because of size or type of operation or
production system, including specialty crop and organic production.
(d) NRCS will conduct focused outreach in regions of national
significance in order to maximize program participation. These areas
could include landscapes such as the Chesapeake Bay watershed and Great
Lakes basin.
Sec. 1470.6 Eligibility requirements.
(a) Eligible applicant. To be an eligible applicant for CSP, a
producer must be the operator in the Farm Service Agency (FSA) farm
records management system. Potential applicants that are not in the FSA
farm records management system must establish records with FSA.
Potential applicants whose records are not current in the FSA farm
records management system must update those records prior to the close
of the evaluation period to be considered eligible. NRCS may grant
exceptions to the ``operator of record'' requirement for producers,
tenants, and owners in the FSA farm records management system that can
demonstrate, to the satisfaction of NRCS, they will operate and have
effective control of the land. Applicants must also meet all of the
following requirements:
(1) Have effective control of the land unless an exception is made
by the Chief in the case of land administered by the BIA, Indian lands,
or other instances in which the Chief determines that there is
sufficient assurance of control;
(2) Be in compliance with the highly erodible land and wetland
conservation provisions found at 7 CFR part 12;
(3) Be in compliance with Adjusted Gross Income provisions found at
7 CFR part 1400;
(4) Supply information, as required by NRCS, to determine
eligibility for the program, including but not limited to, information
related to eligibility requirements and ranking factors; conservation
activity and production system records; information to verify the
applicant's status as a historically underserved producer, if
applicable; and payment eligibility as established by 7 CFR part 1400;
and
(5) Provide a list of all members of the legal entity and embedded
entities along with members' tax identification numbers and percentage
interest in the entity. Where applicable, American Indians, Alaska
Natives, and Pacific Islanders may use another unique identification
number for each individual eligible for payment.
(b) Eligible land. A contract application must include all of the
eligible land on an applicant's agricultural operation, except as
identified in paragraph (b)(3) of this section. A participant may
submit an application(s) to enter into an additional contract(s) for
newly acquired eligible land, which would then compete with other
applications in a subsequent ranking period. The land as described
below is part of the agricultural operation and eligible for enrollment
in the CSP:
(1) Private agricultural land;
(2) Agricultural Indian lands;
[[Page 31657]]
(3) NIPF:
(i) By special rule in the statute, NIPF is eligible land,
(ii) No more than 10 percent of the acres enrolled nationally in
any fiscal year may be NIPF,
(iii) The applicant will designate by submitting a separate
application if they want to offer NIPF for funding consideration,
(iv) If designated for funding consideration, then the NIPF
component of the operation will include all the applicant's NIPF. If
not designated for funding consideration, then the applicant's NIPF
will not be part of the agricultural operation; and
(4) Other private agricultural land, as determined by the Chief, on
which resource concerns related to agricultural production could be
addressed by enrolling the land in CSP.
(c) Ineligible land. The following ineligible lands are part of the
agricultural operation, but ineligible for inclusion in the contract or
for payment in CSP:
(1) Land enrolled in the Conservation Reserve Program (CRP), 7 CFR
part 1410;
(2) Land enrolled in the Wetlands Reserve Program (WRP), 7 CFR part
1467;
(3) Land enrolled in the Grassland Reserve Program (GRP), 7 CFR
part 1415;
(4) Land enrolled in the Conservation Security Program, 7 CFR part
1469;
(5) Public land including land owned by a Federal, State, or local
unit of government; and
(6) Land used for crop production after June 18, 2008, that had not
been planted, considered to be planted, or devoted to crop production
for at least 4 of the 6 years preceding that date, unless that land:
(i) Had previously been enrolled in CRP,
(ii) Has been maintained using long-term crop rotation practices as
determined by the designated conservationist, or
(iii) Is incidental land needed for efficient operation of the farm
or ranch as determined by the designated conservationist.
Sec. 1470.7 Enhancements and conservation practices.
(a) Participant decisions describing the additional enhancements
and conservation practices to be implemented under the conservation
stewardship contract will be recorded in the conservation stewardship
plan.
(b) NRCS will make available to the public the list of enhancements
and conservation practices available to be installed, adopted,
maintained, and managed through the CSP.
(c) NRCS will make available bundled suites of conservation
activities for participants to voluntarily select to include as part of
their conservation stewardship plans. The bundles will be designed to
coordinate the installation and adoption of enhancements with each
other to address resource concerns in a more comprehensive and cost-
effective manner.
(d) CSP encourages the use of other NRCS programs to install
conservation practices that are required to meet agreed-upon
stewardship thresholds, but the practices may not be compensated
through CSP.
Sec. 1470.8 Technical and other assistance.
(a) NRCS may provide technical assistance to an eligible applicant
or participant either directly or through a technical service provider
(TSP) as set forth in 7 CFR part 652.
(b) NRCS retains approval authority over certification of work done
by non-NRCS personnel for the purpose of approving CSP payments.
(c) NRCS will ensure that technical assistance is available and
program specifications are appropriate so as not to limit producer
participation because of size or type or operation or production
system, including specialty crop and organic production. In providing
technical assistance to specialty crop and organic producers, NRCS will
provide appropriate training to field staff to enable them to work with
these producers and to utilize cooperative agreements and contracts
with nongovernmental organizations with expertise in delivering
technical assistance to these producers.
(d) NRCS will assist potential applicants dealing with the
requirements of certification under the National Organic Program and
CSP requirements concerning how to coordinate and simultaneously meet
eligibility standards under each program.
(e) NRCS may utilize the services of State foresters and existing
technical assistance programs such as the Forest Stewardship Program of
the U.S. Forest Service, in coordinating assistance to NIPF owners.
Subpart B--Contracts and Payments
Sec. 1470.20 Application for contracts and selecting offers from
applicants.
(a) Submission of contract applications. Applicants may submit an
application to enroll all of their eligible land into CSP on a
continuous basis.
(b) Stewardship threshold requirement. To be eligible to
participate in CSP, an applicant must submit to the designated
conservationist for approval, a contract application that:
(1) Indicates the applicant's conservation activities, at the time
of application, are meeting the stewardship threshold for at least one
resource concern;
(2) Would, at a minimum, meet or exceed the stewardship threshold
for at least one priority resource concern in addition to the resource
concern described in paragraph (b)(1) of this section by the end of the
conservation stewardship contract by:
(i) Installing and adopting additional conservation activities, and
(ii) Improving, maintaining, and managing conservation activities
present on the agricultural operation at the time the contract
application is accepted by NRCS;
(3) Provides a map, aerial photograph, or overlay that:
(i) Identifies the applicant's agricultural operation and NIPF
component of the operation, and
(ii) Delineates eligible land with associated acreage amounts; and
(4) If the applicant is applying for on-farm research and
demonstration activities or for pilot testing, describes the nature of
the research, demonstration, or pilot testing in a manner consistent
with design protocols and application procedures established by NRCS.
(c) Evaluation of contract applications. NRCS will conduct one or
more ranking periods each fiscal year.
(1) To the extent practicable, one ranking period will occur in the
first quarter of the fiscal year;
(2) In evaluating CSP applications, the State Conservationist or
designated conservationist will rank applications based on the
following factors, using the CMT, to the maximum extent practicable:
(i) Level of conservation treatment on all applicable priority
resource concerns at the time of application,
(ii) Degree to which the proposed conservation treatment on
applicable priority resource concerns effectively increases
conservation performance,
(iii) Number of applicable priority resource concerns proposed to
be treated to meet or exceed the stewardship threshold by the end of
the contract, and
(iv) Extent to which other resource concerns, in addition to
priority resource concerns, will be addressed to meet or exceed the
stewardship threshold by the end of the contract period;
(3) In the event that application ranking scores from (2) above are
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similar, the application that represents the least cost to the program
will be given higher priority; and
(4) The State Conservationist or designated conservationist may not
assign a higher priority to any application because the applicant is
willing to accept a lower payment than the applicant would otherwise be
eligible to receive.
(d) Weighting of ranking factors. To the extent the CSP objective
of additional conservation is not being achieved, as determined by the
Chief, NRCS will adjust the weighting of ranking factors in order to
place emphasis on increasing net conservation benefits.
(e) State and local priorities. The Chief may develop and use
additional criteria for evaluating applications that are determined
necessary to ensure that national, State, and local conservation
priorities are effectively addressed.
(f) Ranking pools. Ranking pools will be established in accordance
with Sec. 1470.2(e)(1)(i).
(1) NIPF will compete in ranking pools separate from agricultural
land. An applicant with both NIPF and agricultural land will have the
options to submit:
(i) One application for NIPF;
(ii) One application for agricultural land; or
(iii) Two applications, one for each land type.
(2) An applicant with an agricultural operation or NIPF component
of the operation that crosses ranking pool boundaries will make
application and be ranked in the ranking pool where the largest acreage
portion of their operation occurs.
(3) Within each State or established ranking pool, the State
Conservationist will address conservation access for certain farmers or
ranchers, including:
(i) Socially disadvantaged farmers or ranchers; and
(ii) Beginning farmers or ranchers.
(g) Application pre-approval. The State Conservationist or
designated conservationist will make application pre-approval
determinations during established ranking periods based on eligibility
and ranking score.
(h) Field verification. NRCS will conduct onsite field verification
prior to obligation of contract funding to substantiate the accuracy of
the information provided by pre-approved applicants during the
application process.
Sec. 1470.21 Contract requirements.
(a) After a determination that the application will be approved and
a conservation stewardship plan will be developed in accordance with
Sec. 1470.22, the State Conservationist or designee will enter into a
conservation stewardship contract with the participant to enroll all of
the eligible land on a participant's agricultural operation.
(b) The conservation stewardship contract will:
(1) Provide for payments over a period of 5 years;
(2) Incorporate by reference the conservation stewardship plan;
(3) State the payment amount NRCS agrees to make to the participant
annually, subject to the availability of funds;
(4) Incorporate all provisions as required by law or statute,
including requirements that the participant will:
(i) Implement the conservation stewardship plan approved by NRCS
during the term of the contract,
(ii) Operate and maintain conservation activities on the
agricultural operation consistent with Sec. 1470.23,
(iii) Comply with the terms of the contract or documents
incorporated by reference into the contract,
(iv) Refund as determined by NRCS, any program payments received
with interest, and forfeit any future payments under the program, upon
the violation of a term or condition of the contract, consistent with
Sec. 1470.27,
(v) Refund as determined by NRCS, all program payments received
with interest, upon the transfer of the right and interest of the
participant, in land subject to the contract, unless the transferee of
the right and interest agrees to assume all obligations of the
contract, consistent with Sec. 1470.25,
(vi) Maintain and make available to NRCS upon request, appropriate
records documenting applied conservation activity and production system
information, and provide evidence of the effective and timely
implementation of the conservation stewardship plan and contract, and
(vii) Not engage in any action during the term of the conservation
stewardship contract on the eligible land covered by the contract that
would interfere with the purposes of the conservation stewardship
contract;
(5) Permit all economic uses of the land that:
(i) Maintain the agricultural or forestry nature of the land, and
(ii) Are consistent with the conservation purposes of the contract;
(6) Include a provision to ensure that a participant will not be
considered in violation of the contract for failure to comply with the
contract due to circumstances beyond the control of the participant,
including a disaster or related condition, as determined by the State
Conservationist; and
(7) Include such other provisions as NRCS determines necessary to
ensure the purposes of the program are achieved.
Sec. 1470.22 Conservation stewardship plan.
(a) NRCS will use the conservation planning process as outlined in
the NPPH to encourage participants to address resource concerns in a
comprehensive manner.
(b) The conservation stewardship plan will contain a record of the
participant's decisions that describes the schedule of conservation
activities to be implemented, managed, or improved under the
conservation stewardship contract.
(c) Associated supporting information maintained with the
participant's plan will include:
(1) CMT documentation that will be the basis for:
(i) Identifying and inventorying resource concerns,
(ii) Establishing benchmark data on the condition of existing
conservation activities, and
(iii) Documenting the participant's conservation objectives to
reach and exceed stewardship thresholds;
(2) A plan map delineating enrolled land with associated acreage
amounts;
(3) In the case where a participant wishes to initiate or retain
organic certification, documentation that will support the
participant's transition to or participation in the National Organic
Program;
(4) In the case where a participant is approved for the on-farm
research and demonstration or pilot testing option, a research,
demonstration, or pilot testing plan consistent with design protocols
and application procedures established by NRCS; and
(5) Other information as determined appropriate by NRCS.
Sec. 1470.23 Conservation activity operation and maintenance.
The participant will maintain and manage existing conservation
activities on the agricultural operation to at least the level of
conservation performance identified at the time the application is
obligated into a contract for the conservation stewardship contract
period, and additional activities installed and adopted over the term
of the conservation stewardship contract.
Sec. 1470.24 Payments.
(a) Annual payments. Subject to the availability of funds, NRCS
will provide, as appropriate, annual
[[Page 31659]]
payments under the program to compensate a participant for installing
and adopting additional conservation activities, and improving,
maintaining, and managing existing conservation activities. A split-
rate annual payment structure will be used to provide separate payments
for additional and existing conservation activities in order to place
emphasis on implementing additional conservation.
(1) To receive annual payments, a participant must:
(i) Install and adopt additional conservation activities as
scheduled in the conservation stewardship plan. At least one additional
enhancement must be scheduled, installed, and adopted in the first
fiscal year of the contract. All enhancements must be scheduled,
installed, and adopted by the end of the third fiscal year of the
contract, and
(ii) As a minimum, maintain existing activities to the level of
existing conservation performance identified at the time the
application is obligated into a contract for the conservation
stewardship contract period;
(2) To earn annual payments for an eligible land use, a participant
must schedule, install, and adopt at least one additional conservation
activity on that land-use type. Eligible land-use types that fail to
have at least one additional conservation activity scheduled,
installed, and adopted will not receive annual payments;
(3) A participant's annual payments will be determined using the
conservation performance estimated by the CMT and computed by land-use
type for eligible land earning payments. Conservation performance is
prorated over the contract term so as to accommodate, to the extent
practicable, participants earning equal annual payments in each fiscal
year;
(4) The annual payment rates will be based to the maximum extent
practicable, on the following factors:
(i) Costs incurred by the participant associated with planning,
design, materials, installation, labor, management, maintenance, or
training,
(ii) Income foregone by the participant, and
(iii) Expected environmental benefits, determined by estimating
conservation performance improvement using the CMT;
(5) The annual payment method will accommodate some participant
operational adjustments without the need for contract modification.
(i) Enhancements may be replaced with similar enhancements without
adjustment of annual payment as long as the conservation performance is
determined by NRCS to be equal to or better than the conservation
performance of the additional enhancements offered at enrollment. An
enhancement replacement that results in a decline below that
conservation performance level will not be allowed, and
(ii) Adjustments to existing activities may occur consistent with
conservation performance requirements from Sec. 1470.23; and
(6) Enhancements may be applied on other land included in an
agricultural operation, as determined by NRCS.
(b) Supplemental payments. Subject to the availability of funds,
NRCS will provide a supplemental payment to a participant receiving
annual payments, who also agrees to adopt a resource-conserving crop
rotation.
(1) The State Conservationist will determine whether a resource-
conserving crop rotation is eligible for supplemental payments based on
whether the resource-conserving crop rotation is designed to provide
natural resource conservation and production benefits;
(2) A participant must agree to adopt and maintain a beneficial
resource-conserving crop rotation for the term of the contract to be
eligible to receive a supplemental payment. A resource-conserving crop
rotation is considered adopted when the resource-conserving crop is
planted on at least one-third of the rotation acres. The resource-
conserving crop must be adopted by the third fiscal year of the
contract and planted on all rotation acres by the fifth fiscal year of
the contract; and
(3) The supplemental payment is set at a rate needed to encourage a
producer to adopt a resource-conserving crop rotation and will be
based, to the maximum extent practicable, on costs incurred and income
foregone by the participant and expected environmental benefits,
determined by estimating conservation performance improvement using the
CMT.
(c) On-farm research and demonstration or pilot testing. A
participant may be compensated through their annual payment for:
(1) On-farm research and demonstration activities; or
(2) Pilot testing of new technologies or innovative conservation
activities.
(d) Minimum contract payment. NRCS will make a minimum contract
payment to participants who are socially disadvantaged farmers or
ranchers, beginning farmers or ranchers, or limited resource farmers or
ranchers, at a rate determined by the Chief in any fiscal year that a
contract's payment amount total is less than $1,000. Definitions of
socially disadvantaged farmers or ranchers, beginning farmers or
ranchers, and limited resource farmers or ranchers are contained in
Sec. 1470.3.
(e) Timing of payments. NRCS will make payments as soon as
practicable after October 1 of each fiscal year for activities carried
out in the previous fiscal year. For newly enrolled contracts, payments
will be made as soon as practicable after October 1 following the
fiscal year of enrollment.
(f) Non-compensatory matters. A CSP payment to a participant will
not be provided for:
(1) New conservation practices or enhancements applied with
financial assistance through other USDA conservation programs;
(2) The design, construction, or maintenance of animal waste
storage or treatment facilities, or associated waste transport or
transfer devices for animal feeding operations; or
(3) Conservation activities for which there is no cost incurred or
income foregone by the participant.
(g) Payment limits. A person or legal entity may not receive,
directly or indirectly, payments that, in the aggregate, exceed $40,000
during any fiscal year for all CSP contracts entered into, and $200,000
for all CSP contracts entered into during any 5-year period, excluding
funding arrangements with federally recognized Indian tribes or Alaska
Native corporations, regardless of the number of contracts entered into
under the CSP by the person or legal entity.
(h) Contract limits. Payments under a conservation stewardship
contract with joint operations will be limited to $80,000 per fiscal
year and $400,000 over the term of the initial contract period,
excluding funding arrangements with federally recognized Indian tribes
or Alaska Native corporations. The payment limits for contracts with
persons or legal entities are contained in Sec. 1470.24(g).
(i) Payment limitation provisions for individual Indians and Indian
tribes. Payment limitations apply to individual tribal member(s) when
applying and subsequently being granted a contract as an individual(s).
Contracts with Indian tribes or Alaska Native corporations are not
subject to payment or contract limitations. Indian tribes and BIA will
certify in writing that no one individual, directly or indirectly, will
receive more than the payment limitation. Certification provided at the
time of contract obligation will cover the entire contract period. The
tribal entity must also provide, upon request from NRCS, a listing of
individuals and payment made, by Social Security number or
[[Page 31660]]
other unique identification number, during the previous year for
calculation of overall payment limitations.
(j) Tax Identification Number. To be eligible to receive a CSP
payment, all legal entities or persons applying, either alone or as
part of a joint operation, must provide a tax identification number and
percentage interest in the legal entity. In accordance with 7 CFR part
1400, an applicant applying as a joint operation or legal entity must
provide a list of all members of the legal entity and joint operation
and associated embedded entities, along with the members' Social
Security numbers and percentage of interest in the joint operation or
legal entity. Payments will be directly attributed to legal entity
members for the purpose of complying with Sec. 1470.24(g).
(k) Unique tax identification numbers. Where applicable, American
Indians, Alaska Natives, and Pacific Islanders may use another unique
identification number for each individual eligible for payment. Any
participant that utilizes a unique identification number as an
alternative to a tax identification number will utilize only that
identifier for any and all other CSP contracts to which the participant
is a party. Violators will be considered to have provided fraudulent
representation and be subject to full penalties of Sec. 1470.36.
(l) Payment data. NRCS will maintain detailed and segmented data on
CSP contracts and payments to allow for quantification of the amount of
payments made for:
(1) Installing and adopting additional activities;
(2) Improving, maintaining, and managing existing activities;
(3) Participation in research and demonstration or pilot projects;
and
(4) Development and periodic assessment and evaluation of
conservation stewardship plans developed under this rule.
Sec. 1470.25 Contract modifications and transfers of land.
(a) NRCS may allow a participant to modify a conservation
stewardship contract if NRCS determines that the modification is
consistent with achieving the purposes of the program.
(b) NRCS will allow modification to a conservation stewardship
contract to remove contract acres enrolled in the CRP, WRP, or GRP or
other Federal or State programs that offer greater natural resource
protection. Such modifications are consistent with the purposes of CSP.
Participants will not be subject to liquidated damages or refund of
payments received for enrolling land in these programs.
(c) NRCS will not allow a participant to modify a conservation
stewardship contract to increase the contract obligation beyond the
amount of the initial contract, with exception for contracts approved
by NRCS for renewal or other exceptional cases as determined by the
Chief.
(d) Land under contract will be considered transferred if the
participant loses control of the acreage for any reason.
(1) The participant is responsible to notify NRCS prior to any
voluntary or involuntary transfer of land under contract;
(2) If all or part of the land under contract is transferred, the
contract terminates with respect to the transferred land unless:
(i) The transferee of the land provides written notice within 60
days to NRCS that all duties and rights under the contract have been
transferred to, and assumed by, the transferee, and
(ii) The transferee meets the eligibility requirements of the
program; and
(e) Contract payment adjustments due to modifications will be
reflected in the fiscal year following the modification.
Sec. 1470.26 Contract renewal.
(a) At the end of an initial conservation stewardship contract,
NRCS may allow a participant to renew the contract to receive payments
for one additional 5-year period, subject to the availability of funds,
if they meet criteria from paragraph (b) of this section.
(b) To be considered for contract renewal, the participant must:
(1) Be in compliance with the terms of their initial contract as
determined by NRCS;
(2) Add any newly acquired eligible land that is part of the
agricultural operation and meets minimum treatment criteria as
established and determined by NRCS;
(3) At a minimum, meet stewardship thresholds for at least two
priority resource concerns; and
(4) Agree to adopt additional conservation activities to address at
least one additional priority resource concern during the term of the
renewed conservation stewardship contract.
Sec. 1470.27 Contract violations and termination.
(a) The State Conservationist may terminate, or by mutual consent
with the participants, terminate a contract where:
(1) The participants are unable to comply with the terms of the
contract as the result of conditions beyond their control; or
(2) As determined by the State Conservationist, it is in the public
interest.
(b) If a contract is terminated in accordance with the provisions
of paragraph (a) of this section, the State Conservationist may allow
the participant to retain a portion of any payments received
appropriate to the effort the participant has made to comply with the
contract, or in cases of hardship, where forces beyond the
participant's control prevented compliance with the contract. If a
participant claims hardship, such claims must be clearly documented and
cannot have existed when the applicant applied for participation in the
program.
(c) If NRCS determines that a participant is in violation of the
contract terms or documents incorporated therein, NRCS will give the
participant a period of time, as determined by NRCS, to correct the
violation and comply with the contract terms and attachments thereto.
If a participant continues in violation, NRCS may terminate the CSP
contract in accordance with paragraph (e) of this section.
(d) Notwithstanding the provisions of paragraph (c) of this
section, a contract termination will be effective immediately upon a
determination by NRCS that the participant:
(1) Has submitted false information or filed a false claim;
(2) Engaged in any act, scheme, or device for which a finding of
ineligibility for payments is permitted under the provisions of Sec.
1470.36; or
(3) Engaged in actions that are deemed to be sufficiently
purposeful or negligent to warrant a termination without delay.
(e) If NRCS terminates a contract, the participant will forfeit all
rights to future payments under the contract, pay liquidated damages,
and refund all or part of the payments received, plus interest.
Participants violating CSP contracts may be determined ineligible for
future NRCS-administered conservation program funding.
(1) NRCS may require a participant to provide only a partial refund
of the payments received if a previously installed conservation
activity has achieved the expected conservation performance
improvement, is not adversely affected by the violation or the absence
of other conservation activities that would have been installed under
the contract, and has met the associated operation and maintenance
requirement of the activity; and
(2) NRCS will have the option to reduce or waive the liquidated
damages,
[[Page 31661]]
depending upon the circumstances of the case--
(i) When terminating a contract, NRCS may reduce the amount of
money owed by the participant by a proportion that reflects the good
faith effort of the participant to comply with the contract or the
existence of hardships beyond the participant's control that have
prevented compliance with the contract. If a participant claims
hardship, that claim must be well documented and cannot have existed
when the applicant applied for participation in the program, and
(ii) In carrying out its role in this section, NRCS may consult
with the local conservation district.
Subpart C--General Administration
Sec. 1470.30 Fair treatment of tenants and sharecroppers.
Payments received under this part must be divided in the manner
specified in the applicable contract. NRCS will ensure that tenants and
sharecroppers who would have an interest in acreage being offered
receive treatment which NRCS deems to be equitable, as determined by
the Chief. NRCS may refuse to enter into a contract when there is a
disagreement among joint applicants seeking enrollment as to an
applicant's eligibility to participate in the contract as a tenant.
Sec. 1470.31 Appeals.
A participant may obtain administrative review of an adverse
decision under this part in accordance with 7 CFR parts 11 and 614.
Determinations in matters of general applicability, such as payment
rates, payment limits, the designation of identified priority resource
concerns, and eligible conservation activities are not subject to
appeal.
Sec. 1470.32 Compliance with regulatory measures.
Participants will be responsible for obtaining the authorities,
rights, easements, permits, or other approvals or legal compliance
necessary for the implementation, operation, and maintenance associated
with the conservation stewardship plan. Participants will be
responsible for compliance with all laws and for all effects or actions
resulting from the implementation of the contract.
Sec. 1470.33 Access to agricultural operation.
NRCS, or its authorized representative, will have the right to
enter an agricultural operation for the purpose of determining
eligibility and for ascertaining the accuracy of any representations,
including natural resource information provided by an applicant for the
purpose of evaluating a contract application. Access will include the
right to provide technical assistance, determine eligibility, assess
natural resource conditions, inspect any work undertaken under the
contract, and collect information necessary to evaluate the
implementation of conservation activities in the contract. NRCS, or its
authorized representative, will make an effort to contact the
participant prior to the exercise of this provision.
Sec. 1470.34 Equitable relief.
(a) If a participant relied upon the advice or action of NRCS and
did not know, or have reason to know, that the action or advice was
improper or erroneous, the participant may be eligible for equitable
relief under 7 CFR part 635. The financial or technical liability for
any action by a participant that was taken based on the advice of a TSP
will remain with the TSP and will not be assumed by NRCS.
(b) If a participant has been found in violation of a provision of
the conservation stewardship contract or any document incorporated by
reference through failure to comply fully with that provision, the
participant may be eligible for equitable relief under 7 CFR part 635.
Sec. 1470.35 Offsets and assignments.
(a) Any payment or portion thereof due to any participant under
this part will be allowed without regard to any claim or lien in favor
of any creditor, except agencies of the United States Government. The
regulations governing offsets and withholdings found at 7 CFR part 1403
will be applicable to contract payments.
(b) Any participant entitled to any payment may assign such
payments in accordance with regulations governing assignment of payment
found at 7 CFR part 1404.
Sec. 1470.36 Misrepresentation and scheme or device.
(a) If NRCS determines that an applicant intentionally
misrepresented any fact affecting a CSP determination, the application
will be determined ineligible immediately.
(b) A participant who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part will not be entitled to contract payments and must refund to NRCS
all payments, plus interest determined in accordance with 7 CFR part
1403.
(c) A participant will refund to NRCS all payments, plus interest
determined in accordance with 7 CFR part 1403, received by such
participant with respect to all CSP contracts if they are determined to
have:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program;
(2) Made any fraudulent representation;
(3) Adopted any scheme or device for the purpose of depriving any
tenant or sharecropper of the payments to which such person would
otherwise be entitled under the program; or
(4) Misrepresented any fact affecting a program determination.
(d) Participants determined to have committed actions identified in
paragraph (c) of this section will:
(1) Have their interest in all CSP contracts terminated; and
(2) In accordance with Sec. 1470.27(e), may be determined by NRCS
to be ineligible for future NRCS-administered conservation program
funding.
Sec. 1470.37 Environmental credits for conservation improvements.
NRCS believes that environmental benefits will be achieved by
implementing conservation activities funded through CSP. These
environmental benefits may result in opportunities for the program
participant to sell environmental credits. Any requirements related to
these environmental credits must be compatible with the purposes of the
contract. NRCS asserts no direct or indirect interest on these credits.
However, NRCS retains the authority to ensure that operation and
maintenance (O&M) requirements for CSP-funded improvements are met,
consistent with Sec. 1470.21 and Sec. 1470.23. Where actions may
impact the land and conservation activities under a CSP contract, NRCS
will at the request of the participant, assist with the development of
an O&M compatibility assessment prior to the participant entering into
any credit agreement.
Signed this 21st day of May in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. 2010-12699 Filed 6-2-10; 8:45 am]
BILLING CODE 3410-05-P